1. Does Current Law Require Family Separation?
The Trump administration has said that families who arrive at U.S. border entry points seeking asylum are not being separated from their children. However, adults who crossed the border illegally with children were being separated from those children — this includes parent-child separations.
While the administration has also said that the policy of separating families at the border is in keeping with U.S. immigration laws, and is urging Congress to change the law so this doesn't continue, others dispute that families must be immediately separated.
Entering the U.S. with no visa or any legal authorization and doing so outside U.S. border entry points is a misdemeanor crime. Crossing the border illegally a second time is a felony.
The president's executive order will do three things. It will require Homeland Security to maintain custody of detained families during criminal proceedings and as their asylum claims are adjudicated. For the Secretary of Defense Jim Mattis and the heads of other agencies to find or construct facilities to house the detained families. And for Attorney General Jeff Sessions to prioritize the adjudication of cases involving immigrant families who are detained.
Some confusion over the administration's former family separation policy stems from the 1997 Flores Settlement Agreement which states that children can only be detained for 20 days before they're released to the Department of Health and Human Services.
In 2016, the Ninth Circuit of Appeals ruled that the Flores Settlement Agreement not only applied to unaccompanied children, but also applied to accompanied minors. This means that after 20 days children can no longer be detained alongside their parents or the adults who accompanied them across the border, but must be released to family members already living in the U.S. or a sponsor while their parents remain in detention.
The Flores settlement requires, among other things, that the children be treated a certain way, and receive a specific number of hot meals and snacks each day, the Houston Chronicle noted in an explainer Tuesday.
This "zero-tolerance policy" enacted by the Trump administration in May applies to all adults, regardless of whether they cross the border [illegally] by themselves or with their children. The Department of Justice cannot prosecute children along with their parents, "so the natural result of the zero-tolerance policy has been a sharp rise in family separations."
Trump could have ended the family separations by ending the zero-tolerance policy.
Administration officials have claimed that Democrats are to blame for the current predicament because of the William Wilberforce Trafficking Victims Protection Reauthorization Act, which requires that unaccompanied immigrant minors not be returned promptly to their home country, unless they are from Mexico or Canada. But that law, aimed at preventing human trafficking, was passed unanimously by both parties in both houses of Congress and signed by Republican President George W. Bush in 2008.
In 2015, a federal judge found that the Obama administration had violated the Flores settlement by keeping families together in custody. The New York Times reported at the time that the judge also found that migrant children "were being held in 'widespread deplorable conditions' in Border Patrol stations after they were first caught, and she said the authorities had 'wholly failed' to provide the 'safe and sanitary' conditions required for children even in temporary cells."