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Manuela Tobias
By Manuela Tobias May 29, 2018

Donald Trump blames Democrats for own immigration policy separating families

President Donald Trump wrongly blamed Democrats for his own administrator’s immigration policy.

"Put pressure on the Democrats to end the horrible law that separates children from there (sic) parents once they cross the Border into the U.S.," Trump tweeted.

Trump recently told Homeland Security Secretary Kirstjen Nielsen, "I know what you're going through right now with families is very tough, but those are the bad laws that the Democrats gave us. We have to break up families."

But there is no law that mandates separating children from their parents. Trump’s own administration devised a policy to that effect.

So what is Trump talking about?

Whenever parents are charged with a federal misdemeanor (entry without inspection in this case), or awaiting trial, they are placed in the custody of the U.S. Marshals Service. Children cannot go to jail, so they are transferred to the custody of Health and Human Services’ Office of Refugee Resettlement. They are then placed with relatives, juvenile detention centers or foster care. That’s a longstanding Homeland Security policy, DHS told us.

Before the Trump administration, immigrants entering illegally as families were rarely prosecuted, said Sarah Pierce, an associate policy analyst of the U.S. Immigration Program at the Migration Policy Institute. Instead, immigrants were held in family detention centers until they were sent to appear before an immigration court or deported.

Attorney General Jeff Sessions announced on April 6 the Homeland Security Department would now be referring all illegal border crossings to the Justice Department for prosecution. Facing criminal charges, parents would go to detention centers, leaving their children unaccompanied.

It’s the decision to prosecute parents that is causing the separations.

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"That’s a choice they have made that’s largely different from what other administrations have done," said Peter Margulies, an immigration law and national security law professor at Roger Williams University School of Law.

When we asked for evidence of policies separating families, the White House referred us to items determining what happens to unaccompanied immigrant minors. But none of the children in question would be deemed unaccompanied if the Trump administration did not decide to prosecute their parents.

The 1997 Flores Settlement Agreement, for example, calls for the release of unaccompanied minors to family members or sponsors who can care for them as their immigration case is resolved. The Trafficking Victims Protection Reauthorization Act of 2008, which Trump has wrongly called "a Democrat rule," determines that unaccompanied minors be transferred to Health and Human Services custody.

The White House argued such policies encourage parents to send their children into the United States, knowing they will be promptly released.

"The cruel and inhumane open borders policies of the Democratic Party are responsible for encouraging mass illegal migration, enabling horrendous child smuggling, and releasing violent MS-13 gang members into American communities," White House deputy press secretary Hogan Gidley said in an emailed statement.

The Trump administration may believe that Democrats are responsible for policies that encourage illegal border crossing, but we found no law mandating that children be separated from their parents.

Our ruling

Trump said a "horrible law" requires that children be separated from their parents "once they cross the Border into the U.S."

There is no such law. The Homeland Security Department’s longstanding policy is to separate children from their custodians when they are referred for criminal prosecution. Trump’s administration has decided to prosecute all illegal crossings. Families were rarely prosecuted under previous administrations.

We rate this statement False.

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A "horrible law" requires that children be separated from their parents "once they cross the Border into the U.S."
In a tweet
Saturday, May 26, 2018

Our Sources

Email interview, Steven Cheung, White House spokesman, May 29, 2018

Donald Trump, Tweet, May 26, 2018

C-SPAN, Democrats break up families, May 16, 2018

U.S. Justice Department, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry, April 6, 2018

CQ Congressional transcript, Senate Homeland Security and Governmental Affairs Committee Holds Hearing on Homeland Security Department Authorities and Resources, May 18, 2018

U.S. Justice Department, Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration, May 7, 2018

Email interview, Department of Homeland Security, May 29, 2018

Phone interview with Peter Margulies, immigration law and national security law professor at Roger Williams University School of Law, May 29, 2018

Phone interview with Sarah Pierce, associate policy analyst at the Migration Policy Institute, May 29, 2018

Email interview with Mark Greenberg, senior fellow at the Migration Policy Institute, May 29, 2018

Email interview with Adam Cox, an expert on immigration law and professor at New York University, May 29, 2018

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Donald Trump blames Democrats for own immigration policy separating families

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