AP FACT CHECK: GOP now blames court for family separation
WASHINGTON (AP) — President Donald Trump is refusing to take ownership of an immigration policy that is separating children from parents who are arrested for illegally crossing the border. His supporters in Congress are helping him with that evasion.
Trump has repeatedly tried to pin blame on Democrats, saying they passed a law that is forcing the families apart. No such law exists.
Now House Speaker Paul Ryan says a court decision is responsible and legislation is required to fix it. The White House agrees. But that’s a diversion, too.
A look at Ryan’s statement on the subject Thursday, one by Trump spokeswoman Sarah Huckabee Sanders and the underlying facts:
RYAN: “This is because of a court ruling, and so this, I do think, ought to be addressed. We believe it should be addressed in immigration legislation. So, what’s happening at the border in the separation of parents and their children is because of a court ruling, and that’s why I think legislation’s necessary. ... We don’t want kids to be separated from their parents. I think I just made that really clear. And we believe, because of the court ruling, this will require a legislative change.”
SANDERS: “The separation of illegal alien families is the product of the same legal loopholes that Democrats refuse to close and these laws are the same that have been on the books for over a decade and the president is simply enforcing them.”
THE FACTS: The Trump administration’s “zero tolerance” policy is responsible for spurring family separations. Court rulings do not mandate that course.
Zero tolerance means that when a family is caught sneaking into the U.S., the parents now are routinely referred for criminal prosecution, even if they have few or no previous offenses. That typically means detention for the adults, pending their trial. Under U.S. protocol, if parents are jailed, their children are separated from them because the children aren’t charged with a crime.
Until the policy was announced in April, such families were usually referred for civil deportation proceedings, not requiring separation.
More than 650 children were separated from their parents at the border during a two-week period in May alone, according to U.S. Customs and Border Protection.
Where do the courts fit into this? In short, court rulings establish the right of migrant children to be released from custody. They do not establish that right for parents, so the discrepancy can be used to keep adults behind bars while their children are not.
In 1997, the settlement of a class-action lawsuit set policies for the treatment and release of unaccompanied children who are caught at the border. The Flores settlement, named for a teenage girl who brought the case in the 1980s, requires the government to release children from custody and to their parents, adult relatives or other caretakers, in order of preference. If those options are exhausted, authorities must find the “least restrictive” setting for the child who arrived without parents. The Trump administration wants Congress to pass legislation overturning the settlement.
In 2015, a federal judge in Los Angeles expanded the terms of the settlement, ruling that it applies to children who are caught with their parents as well as to those who come to the U.S. alone. Other recent rulings, upheld on appeal, affirm the children’s rights to a bond hearing and require better conditions at the Border Patrol’s short-term holding facilities.
In 2016, the Ninth U.S. Circuit Court of Appeals ruled that child migrants who came to the border with parents and were held in custody must be released. The decision did not state parents must be released. Neither, though, did it require parents to be kept in detention, apart from their children.
Trump has been blaming “bad legislation passed by the Democrats,” as he recently put it, for driving families apart. But the 2008 law he appears to be referring to passed unanimously in Congress and was signed by a Republican president. It was focused on freeing and otherwise helping children who come to the border without a parent or guardian. It does not call for family separation.
New legislation, as Ryan proposes, could bring clarity to the fate of families detained at the border. But the rise in split families comes from the Trump administration practice to maximize criminal prosecutions and the manner in which authorities are carrying that out.
Spagat reported from San Francisco. Associated Press writers Amy Taxin in Santa Ana, California, and Jill Colvin in Washington contributed to this story.