Trump claims that his hands are tied, that the law requires children to be removed from parents who have illegally crossed the border. When asked why, if that were so, no previous president has taken children from their parents like this, he replied that HE is following the law, and the previous presidents were not.
Others say that Trump instituted this policy, and he can easily reverse it himself.
Who is right?
TL:DR -- Trump is wrong.
Details:
The White House claims there was a law passed in 1997 by Clinton that requires separation of children. Trump calls it "bad legislation passed by the Democrats" but says he must follow the law. He also refers to a court decision in 2015 which forbids the incarceration of children with their parents.
First of all, neither of these is legislated law. They were court cases aimed at protecting the rights of migrant children and their famiies. They do not say what the administration claims they say.
They do not force removal of children from parents.
The 1997 case is known as the Flores Settlement. It was an agreement reached in a civil lawsuit. Two civil rights organizations sued the INS (the Immigration and Naturalization Service) over their treatment of unaccompanied migrant children. The Flores Settlement said these children, mostly teenagers, must be held in a "least restrictive" setting, and couldn't be held for more than 20 days. Furthermore, the kids must be released "without unnecessary delay" to a relative, or, if no relative was available, to a licensed foster program. This meant that they went from the custody of INS to the custody of the Office of Refugee Resettlement (ORR).
The Flores Settlement was about unaccompanied children, but was later held (2015, see below) to also apply to children who arrived with their parents. The interpretation of exactly how this applies is key to the question today.
At the time of Flores, 1997, families detained while awaiting immigration classification were sent to one of two family detention centers. Conditions in the Hutto facility in Texas were so bad that public outcry caused it to be closed in 2009. That left only the Berks County Residential Center in Pennsylvania, which was used less and less as the government began to use more alternatives to detention.
But then, in 2014, violence in Central America led to a drastic increase in asylum seekers. The government resurrected the family detention program, and established two new facilities in Texas, both run by for-profit prison companies.
Human rights advocates, bar associations, child welfare organizations, women's groups, and faith groups, as well as 33 Senators and 136 members of Congress, objected to this expansion of the detention program and brought suit. And so, in July of 2015, Judge Gee of the US District Court for the Central District of California ruled that six specific reforms needed to be made:
1. The government must keep better records on detainees and children. They must make a better and continuous effort to reunite children with parents.
-> This is the opposite of what is happening now. In fact, there is apparently no actual protocol for reuniting children with their parents once they have been separated.
2. The government must process detainees promptly (the Flores 20-day limit), and in order of a defined priority. Family groups should be in the first priority category.
-> Again, this is not part of the current policy.
3. A child should be released to a relative or licensed program, but if for some reason this is not possible, the child may not be held a facility where the child is locked up, nor may the child be held in an unlicensed facility.
-> This is the clause that Trump is referring to. At the moment, none of the family detention centers are licensed, and none allow the child to freely leave (so they are "locked up"). Therefore, this clause prevents children being sent to a family center -- even if accompanied by a parent. (Note that one humane solution for compliance would be to reform facilities so they can be licensed, and allow the children out to go to the local school)
4. When a child is released, the parent should be released with them. If the parent poses a flight or safety risk, the government can require a bond or ankle ID or other condition of release.
-> This is what the previous administration did. Now it is not being followed at all. Instead, this administration has preferred to separate the children from the parents, then call the children "unaccompanied". I find this especially despicable.
5. Conditions at the temporary holding centers must be improved, and standards put in place.
-> No comment needed.
6. The government must keep records of compliance and report statistics on a monthly basis.
-> This is an attempt at transparency, and I don't know the extent of compliance, but it apparently hasn't helped much.
The American Immigration Council welcomed this ruling, saying that it "should signal the end of the mass incarceration of children and mothers seeking asylum in the U.S."
No such luck.
The Government appealed this decision to the Ninth Circuit Court of Appeals, saying they wanted more freedom on how to treat detainees. The court denied the appeal, reaffirming the rights of the families and especially the children.
This is being twisted to mean that the children MUST be removed from their parents when the parents are incarcerated.
CONCLUSION
There is nothing that says children have to be removed from their parents.
On the contrary, the fourth clause of the 2015 case says that the parents must accompany the children.
The third clause says children can't be incarcerated, even with their parents, but this is only in conflict with clause four if the government insists the parents must be incarcerated in an unlicensed facility.
The "zero-tolerance" policy of the current administration is the only reason why the parents are being immediately incarcerated. Note that this policy is legally questionable on two counts:
1. The LEGAL procedure for seeking asylum is to apply from inside the country - i.e., after they have crossed the border. They have 60 days in which to apply for asylum. The ICE handbook has a system of classification for those apprehended which is not being followed. Incarceration of parents in a facility that prevents the children from accompanying them contravenes clause two.
2. Crossing the border without authorization is only a misdemeanor, not a felony. Not normally what is considered a "crime". Yes, children do not accompany felon parents who are sentenced to prison, but no one is being sentenced here. The families are being detained while their status is being determined. Incarceration that triggers the "no children" clause is inappropriate.
There are options.
Do not incarcerate the parents. Do as previous administrations did, and release them on bond, as suggested in clause four. Are they violating bond? That's a different problem, but one that can be solved without traumatizing the children. (For example, ICE reports that electronic monitoring has an over 98% success rate in getting migrants to show up for their court appointments).
Or, detain the parents in a licensed facility and allow the children to stay with them. The children are free to come and go, perhaps in the custody of a family member or parent-approved guardian. That would satisfy the third clause.
In short - Trump CAN easily, simply by declaration, reverse this policy. He is choosing not to do so, and is cherry-picking aspects of the court decisions that he feels justify his position.
Trump is approaching this, as he seems to approach all things, as bargaining chips in a negotiation. He is not a lawyer and does not seem to understand the law or how the government is structured.
Trump is saying that the Democrats could fix things by agreeing to his immigration initiative.
Yes, Congress COULD fix things. But it isn't by passing his proposed immigration reform bill. They could simply pass a law forbidding the removal of children from their parents unless for cause unrelated to the parent's immigration status - and in fact, such a bill has been proposed.
However, Congress is controlled by Republicans and although they too are outraged by children being forcibly removed from their parents, most of them have so far supported Trump in his attempt to use the children as hostages to force Democratic compliance.
Immigration reform is a related issue, but passing it is not actually a solution to the problem.
It is somewhat like an ambulance arriving on a scene where someone has fallen down the stairs, only to be told they can't treat the patient until the unsafe stairs are repaired.
Trump caused this problem, and he can fix it. Claiming that his hands are tied and blaming others is simply misdirection.
UPDATE: Wednesday, June 20: Trump just signed an Executive Order to stop the removal of kids from their parents.
He did not reveal details.
If he is simply allowing kids to go into detention with their parents, there will still be a conflict with the 2015 decision, and it will probably lead to another court case.
Still, be incarcerated all together would be better than having the families torn apart. I don't imagine the White House will consider having the kids able to come and go.
If he allows families to be released, even with electronic monitoring, his anti-immigration base will be upset at him following the "catch-and-release" system previous administrations used. But Trump is canny - I imagine he will figure out a way to portray himself as the hero.
UPDATE to the UPDATE: Thursday June 21: Trump is holding fast on his insistence on incarcerating the families -- "zero-tolerance". His Executive Order specifically asks that Flores be overturned.
Yes, by removing the stipulation that children not be incarcerated, it allows families to be incarcerated together. But if he is able to remove the Flores protections altogether, the result may well be indefinite detention by families and unaccompanied minors, in horrific conditions.
Plus, his proclamation does not address the thousands of children who have already been removed from their parents.
Article by the ACLU: https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/despite-trumps-order-many-families-nightmare
