Family Separation: Fact vs. Fiction

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*Please note that this post does not constitute legal advice. Please consult with a qualified attorney for legal counsel.

If you have seen the news or been on social media recently you have almost certainly heard of immigrant children being separated from their parents at the southern border.  From May to June of this year, more than 2,000 children were separated from their parents at the U.S.-Mexico border. Due to public outcry over the consequences of their inhumane policy, the Trump Administration has issued an Executive Order backing off from their policy of family separation.

The following information is intended to clear up some of the confusion surrounding the Trump Administration's recent zero-tolerance policy that resulted in family separation.
 

Fiction: Family separation is required under the law.
Fact: There is no law that requires the separation of children from their parents upon entering through the southern border. The reason this started happening to all families in May was due to a policy decision enacted by the Trump Administration and Attorney General Jeff Sessions. On April 6, 2018, a memo issued by Attorney General Jeff Sessions stated that all immigrants crossing unlawfully along the southern border would be referred for criminal prosecution without exception. The result of this "zero-tolerance" policy was children being separated from parents who were jailed for criminal prosecution. Jeff Sessions and the Trump Administration were fully aware of the consequences of this zero-tolerance policy and wanted to use the separation of families as a deterrent to migrants seeking asylum.

Why some people might have said it is the “law” to do this can be directly attributed to statements made by Trump himself. This is a direct quote from Trump made on June 15: “I hate the children being taken away. The Democrats have to change their law. That’s their law.” In fact, there was no such law requiring children to be separated from their parent(s), despite the falsehoods perpetuated by Trump. Consider this: If there was such a law, how would President Trump have been able to overturn such by Executive Order? Executive orders cannot reverse a law passed by Congress. What they can do is tell agencies how to enforce or apply laws in a certain area, i.e. change policy.
 

Fiction: The law requires that all immigrants entering unlawfully must be prosecuted criminally.
Fact: The law does not require that all criminal actions be prosecuted. The Justice Department and all prosecutors in the U.S. have a great deal of leeway in who they choose to prosecute and for what crimes. This is known as prosecutorial discretion. When charging someone with a crime, prosecutors often consider the collateral consequences of such, including cost/benefit to society, financial costs, and various other reasons. For example, a prosecutor might not charge a single mother with a minor crime if they know that the children will be put into foster care.  The "zero-tolerance" policy of Jeff Sessions and the Trump Administration stripped prosecutors of their discretion, which resulted in family separation. On June 18, 2018, a bipartisan group of former U.S. Attorneys called on Jeff Sessions to end this policy.
 

Fiction: Family separation was an existing policy prior to the Trump Administration.
Fact: Prior administrations considered the impact of family separation when deciding whether to prosecute migrants for illegal entry. The illegal entry law has been on the books for some time but no past administration (Obama, Bush, etc.) had a zero-tolerance policy in its application. Prior administrations generally did not criminally prosecute parents who were traveling with children for illegal entry precisely because they knew of how terrible it would be to separate a child from its mother and father and put them into a detention facility. In limited circumstances, family separation did occur under prior administrations but no prior administration had a "zero-tolerance" policy in the prosecution of illegal entry and they made exceptions for adults migrating with children.
 

Fiction: The Trump Administration deserves credit for ending for ending the "law" requiring family separation.
Fact: The Trump Administration should not be given credit for ending an unconscionable policy they created.  As established above, there was no law requiring family separation and it was a result of the policy decision by the Trump Administration and Attorney General Jeff Sessions. What Trump did was create this inhumane policy and then take credit for ending it. This would be akin to me setting someone’s house on fire, putting the fire out myself and then taking credit for saving the house.
 

Fiction: The only way to end family separation was through an executive order.
Fact: Ending the "zero-tolerance" policy on prosecutions for illegal entry would have prevented family separation without an executive order. As established above, the reason children were separated from their families was the Trump Administration's and the Attorney General's decision to prosecute all migrants crossing through the U.S.-Mexico border for illegal entry whether or not they were traveling with minor children. The recent executive order issued by Trump states that while they will still apply zero-tolerance to criminal prosecutions for illegal entry, families will now be held in immigration detention as a unit while the parent is prosecuted.

Family detention is not a new policy and was also used regularly by the Obama Administration. Family detention was wrong when done by the Obama Administration and remains wrong now. Even discounting the harm that detention inflicts on children, with or without their family, family detention results in several other problematic issues. Detention makes it very difficult for migrants to obtain adequate legal representation, gather evidence in support of their claim, and generally deprives them the opportunity of a full and fair hearing on their asylum claim. Setting aside the human rights and due process concerns still does not justify the detention of migrants seeking asylum. There are alternatives to detention (ATD) that not only cost far less than detaining migrants but are also very effective in ensuring compliance with removal proceedings.