Originally published by The Washington Post
“We have to break up families. The Democrats gave us that law. It’s a horrible thing where you have to break up families. The Democrats gave us that law and they don’t want to do anything about it.”
— President Trump, in a round table on sanctuary cities in California, May 16, 2018
“Yet this administration is separating kids from their parents and unable to account for 1,500 lost children! Shame.”
— Sen. Tim Kaine (D-Va.), on Twitter, May 27, 2018
Trump blames Democrats for a law that separates undocumented immigrant children from their families. Some Democrats blame Trump’s administration for losing track of nearly 1,500 immigrant kids.
None of this is accurate.
We’ve fact-checked many claims about the border, and it’s clear that the latest spin from both sides deserves a turn under the microscope. However, since this is a roundup of multiple claims, we won’t be giving Pinocchio ratings.
Let’s dig in.
These claims mostly revolve around “catch and release,” the practice by U.S. authorities of releasing children and asylum seekers into the community while they await immigration hearings. Many fail to show up for their hearings and remain in the country without legal authorization.
The Trump administration says these legal “loopholes” abet the trafficking of children while allowing smugglers and bad actors to profit. Immigration and civil rights groups say that it’s misleading to portray the asylum process as a loophole and that, in recent years, thousands of people legitimately have sought refuge in the United States from the violence in El Salvador, Guatemala and Honduras.
‘We have to break up families. The Democrats gave us that law.’
Trump says his administration’s policy of separating children from their families can be traced back to a Democratic immigration law. But as we’ve reported, catch and release is not a single law so much as a collection of policies and court rulings spanning Democratic and Republican administrations. We gave the president Three Pinocchios in April when he tweeted that catch and release was a “liberal” and “Democrat” law.
In a briefing with reporters on May 29, Stephen Miller, a senior policy adviser to Trump, explained the president’s rationale for pinning these policies on Democrats. The gist of it is that these laws may or may not be Democratic creations, but Democrats own them because they don’t support Trump’s more-restrictive immigration agenda.
“It’s a pretty straightforward issue,” Miller said. “Near-unanimous Republican agreement about the need to change law and policy in order to close those loopholes, and the Democrats are opposing them.”
It’s quite a stretch to say there’s “near-unanimous Republican agreement” on this agenda or unified opposition by Democrats. The Secure and Succeed Act, sponsored by Sen. Charles E. Grassley (R-Iowa), failed 39 to 60 in the Senate in February. The White House backed this proposal, which got 36 of 51 GOP votes and three Democratic votes, far short of passage. Three other immigration proposals, backed by broader mixes of Republicans and Democrats, each got more than 50 votes — enough to pass if there had not been a procedural vote requiring 60 votes.
Miller mentioned the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, a law signed by President George W. Bush, a Republican. The TVPRA is meant to give safe harbor to victims of human trafficking and says unaccompanied children “are exempt from prompt return to their home country,” unless they come from Canada or Mexico, according to the Department of Homeland Security. Children fleeing violence in El Salvador, Guatemala and Honduras are covered by this law.
Miller also mentioned the “Flores settlement” from 1997. This legal agreement struck by President Bill Clinton’s administration requires the federal government to release rather than detain undocumented immigrant children, first to their parents if possible, to other adult relatives if not, and to licensed programs willing to accept custody if no relatives are available. As a last resort, U.S. officials may place children in the “least restrictive” setting available.
A federal judge in California ruled in 2015 that the Flores settlement covered all children in immigration officials’ custody, regardless of whether they were apprehended at the border alone or with family members. The judge’s ruling also covered any accompanying parents. But the U.S. Court of Appeals for the 9th Circuit reversed the latter part of the ruling and said the Flores settlement required only that children, not parents, be released. Therefore, the government is required to keep immigrant children and their parents together only for a limited time.
But none of these legal developments requires the Trump administration to separate children from their families. Instead, separations are rising in large part because of a “zero tolerance” policy implemented by Attorney General Jeff Sessions. In April, Sessions directed prosecutors to charge as many illegal entry offenses as possible.
Devin O’Malley, a Justice Department spokesman, said in the May 29 briefing that people charged with these offenses often are sentenced to time served and transferred to the Department of Homeland Security for deportation.
So, on one hand, the Flores settlement and the TVPRA require that children be released. On the other, Sessions’s zero-tolerance policy subjects any accompanying parents to criminal prosecution and eventual deportation.
Laying this on Democrats does not track with reality. The TVPRA was signed by Bush, and the Flores settlement is a court-approved agreement, not a law. Nothing required the Trump administration to separate children from their families until Sessions’s zero-tolerance policy made it a practical necessity.
Miller also mentioned a Supreme Court ruling from 2001, Zadvydas v. Davis. The court ruled that immigrants who were under deportation orders — but whom no other country would accept — generally could not be detained by U.S. officials for more than six months.
Congress cannot pass a law that overturns this court ruling. It would require a constitutional amendment or a new Supreme Court ruling overturning Zadvydas.
Republican senators introduced legislation to narrow the scope of the ruling in 2014, allowing the Department of Homeland Security to retain custody of some individuals past the six-month deadline in special circumstances, including when the individual was deemed a threat to national security or had a highly contagious disease. Parts of this bill were folded into the Secure and Succeed Act.
The president asked Congress to allow U.S. Immigration and Customs Enforcement “to retain custody of illegal aliens whose home countries will not accept their repatriation,” so long as it is “consistent with the Constitution,” according to a statement of principles and policies he sent to Congress in October 2017.
“The administration has repeatedly advocated for the closure to federal immigration loopholes that would allow for the swift, safe, and expeditious return of illegal alien minors, adults, and families at the southern border,” White House deputy press secretary Hogan Gidley said. “However, the Democratic Party has repeatedly opposed these loophole closures in favor of preserving ‘catch-and-release’ policies that make a mockery of national sovereignty.”
A White House official said that “from October 2017 to this February, DHS saw a staggering 315 percent increase in illegal aliens using children to pose as family units to gain entry into the country, compared to the same time frame the previous year.”
The official also pointed to a column in the National Review by Rich Lowry.
“Separation happens only if officials find that the adult is falsely claiming to be the child’s parent, or is a threat to the child, or is put into criminal proceedings,” Lowry wrote. “It’s the last that is operative here. The past practice had been to give a free pass to an adult who is part of a family unit. The new Trump policy is to prosecute all adults.”
‘This administration is separating kids from their parents and unable to account for 1,500 lost children!’
This startling claim has spread like wildfire online; Kaine is not alone in tweeting it. Did the government suddenly lose track of 1,500 children?
In a word, no.
The Department of Health and Human Services resettled 7,635 children in the United States from October 2017 through December 2017, most of whom were fleeing violence in El Salvador, Guatemala and Honduras.
As we noted, the Flores settlement requires that these children be placed with parents if they’re available, with other relatives if not, then in licensed programs or “least restrictive” settings if all else fails.
The HHS Office of Refugee Resettlement will place these children even with family members who themselves may be undocumented. “We’re not able to deny placement just because parents or family members are in the country illegally,” Steven Wagner, the acting assistant secretary of the Administration for Children and Families at HHS, told reporters in the May 29 briefing.
All 7,635 children were resettled by HHS. After 30 days, the department called the parents or guardians to check up on things. But these calls were not required by law, and in 1,475 cases, the parents or guardians did not respond, perhaps because they feared being targeted for deportation, Wagner said.
Wagner testified in April to a Senate subcommittee that, of the 7,635 children, 6,075 remained where they were placed, 52 had moved, 28 had run away and five were deported. That left 1,475 migrant children. Just because their parents or guardians did not return HHS’s phone calls after 30 days does not mean the children are missing, he said.
“We are not in custody of the children at that point,” Wagner said. “If you call a friend and they don’t answer the phone, you don’t assume that they’ve been kidnapped.”
Kaine’s tweet suggests the 1,500 children were separated from their families and then lost. That’s not what happened, since all 7,635 children were unaccompanied minors when they crossed the border and were resettled.
“Senator Kaine has serious concerns about the Trump administration’s policies that threaten to put kids in harm’s way, including the separation of parents and children at the border, the widely reported failure to account for nearly 1,500 children who came to the U.S. as unaccompanied minors, and the lack of protections for kids in the U.S. whose parents are arrested or detained by immigration authorities,” a Kaine representative said, adding later, “He was clearly listing facts about two separate Trump administration policies in his tweet, not conflating the two.”
It’s not the first time the government lost track of children in these situations. According to Wagner, in the past fiscal year, covering the tail end of Obama’s term and most of Trump’s first year, 14 percent of HHS calls were not returned.