Immigration Law

Is it true? Denying family separation policy is 'Orwellian stuff,' newspaper's fact check says

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Department of Homeland Security Secretary Kirstjen Nielsen/Flickr.

There is no policy of separating children from their parents at the border, according to Department of Homeland Security Secretary Kirstjen Nielsen.

While there are no written regulations that establish a policy of family separations, Nielsen’s claim is “Orwellian stuff,” according to the Washington Post.

The newspaper concludes the spin deserves “four Pinocchios,” the Post’s rating for “whoppers.”

Families are being separated primarily because of the Trump administration’s zero-tolerance policy of prosecuting people entering the country illegally, which is a misdemeanor for a first-time offense, according to the Post and the New York Times. The children aren’t prosecuted, however, they are separated from their parents.

The Immigration and Nationality Act of 1952 makes the first illegal entry into the United States a misdemeanor. Nielsen says the U.S. no longer exempts entire classes of people from prosecution.

The children and parents are initially taken into DHS custody. The parents are transferred to federal criminal custody, and the children are then considered unaccompanied minors. The children are transferred to the Office of Refugee Resettlement, where they spend an average of 51 days at a shelter before being placed with a sponsor.

The zero-tolerance policy is a change from the policy under the Obama administration, which prioritized the deportation of gang members, felons and people who posed a national security threat. Other undocumented immigrants were released and processed through the civil court system, rather than the criminal courts.

Government officials have said they are forced to separate families because of court rulings and laws. The Post and the Times take a look at the legal restrictions. DHS also has information here.

A 2016 federal appeals court decision interpreted a 1997 federal consent decree that required the quick release of immigrant children. The 2016 decision said the consent decree applies to children who enter the country illegally with their parents as well as unaccompanied minors. The decision required release of the children or a transfer to a licensed facility within a presumptively reasonable period, set at 20 days.

“Because most jurisdictions do not offer licensure for family residential centers,” DHS says, “DHS rarely holds family units for longer than 20 days.” But the case doesn’t prevent the government from releasing the parents along with their children after the 20-day period, the Post points out.

The Trafficking Victims Protection Reauthorization Act also governs the treatment of immigrant children from Central America. Those children can’t be quickly returned to their countries. Instead, they must be transferred to the Office of Refugee Resettlement within 72 hours and placed in the least restrictive setting possible.

The Post’s conclusion: “Immigrant families are being separated at the border not because of Democrats and not because some law forces this result, as [President Donald] Trump insists. They’re being separated because the Trump administration, under its zero-tolerance policy, is choosing to prosecute border-crossing adults for any offenses.”

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