National News

Fact-Checking the Trump Administration’s Case for Child Separation at the Border

Posted June 19, 2018 8:31 p.m. EDT

President Donald Trump and top administration officials have continued to defend their practice of breaking up families who arrive at the border in the face of bipartisan outcry, criticism from the United Nations and a lawsuit.

They’ve denied the existence of a policy and that they were the first to enforce it, pointed to surges in illegal immigration and fraud, trotted out decades-old court cases and human trafficking laws, blamed Democrats and even cited the Bible.

Here are their defenses, fact-checked.


“We have to get the Democrats to go ahead and work with us. Because as a result of Democrat-supported loopholes in our federal laws, most illegal immigrant families and minors from Central America who arrive unlawfully at the border cannot be detained together or removed together, only released. These are crippling loopholes that cause family separation, which we don’t want.”

— Trump, in remarks Tuesday to the National Federation of Independent Business


Trump is again wrongly claiming that Democrats are responsible for “loopholes” that necessitate breaking apart families at the border.

The White House cites a 1997 court settlement and a 2008 law as these loopholes. Neither mandates detaining parents and separating children from their families.

Under the court settlement, the government agreed to quickly release children under an established preference that ranks for custody. In 2016, an appeals court held that the government must do the same for children who arrive with families.

The 2008 law, the Trafficking Victims Protection Reauthorization Act, requires the government to transfer children from countries other than Mexico and Canada to the care and custody of the Department of Health and Human Services and then place them in formal removal proceedings. It does not apply to children who travel with family.

Trump is also wrong that Central American families who enter the United States illegally cannot be removed together. Like individual adults, families with children can be placed under a process known as expedited removal — unless they seek asylum.

Through expedited removal, immigration officials can quickly remove an unauthorized immigrant from the country without having to go through an immigration court. If the families do make a claim of credible fear and are denied, they are then placed into removal proceedings.

As Trump said, his administration could release one or both parents with their children. But it has instead chosen to prosecute people who cross the border illegally under a new “zero tolerance” policy, leading to the separation of children from their parents.


“We now have thousands of judges — border judges — thousands and thousands. And, by the way, when we release the people, they never come back to the judge anyway.”

— Trump

This is exaggerated.

Trump rejected a proposal from Sen. Ted Cruz, R-Texas, to end family separation by hiring more immigration judges by suggesting that doing so would be useless.

There are about 350 immigration judges in the United States, according to the Justice Department, not “thousands” of “border judges.” (There are just 1,300 sitting federal judges in all.)

Trump is also wrong that immigrants “never” appear for a hearing before an immigration court. Around 20 to 40 percent of immigrants have failed to show up at a hearing over the past five years, data from the Justice Department shows.


“The Obama administration, the Bush administration all separated families at the — They absolutely did.”

— Kirstjen Nielsen, secretary of homeland security, at a news conference on Monday

This is misleading.

While previous administrations did break up families, it was rare, according to former officials and immigration experts. The Trump administration, by contrast, has knowingly enacted the practice that some officials have characterized as a deterrence against illegal entry.

In 2005, President George W. Bush introduced Operation Streamline, which, like the Trump administration’s zero-tolerance policy, referred for prosecution immigrants illegally crossing the border. Unlike the Trump administration, the Bush administration made an exception for parents with children.

A spokeswoman for the Department of Homeland Security could not provide data on how many children were separated from their parents in previous administrations.

Jeh Johnson, Nielsen’s predecessor under President Barack Obama, said in a recent interview with NPR that it was possible that families were separated, “but not as a matter of policy or practice.”

“I can’t say that it never happened,” Johnson said. “There may have been some exigent situation, some emergency. There may have been some doubt about whether the adult accompanying the child was in fact the parent of the child.”

Cecilia Muñoz, Obama’s top domestic policy adviser, told The New York Times that the Obama administration had decided against separating children from their parents because “the morality of it was clear — that’s not who we are.”

A 2016 report from the American Immigration Council details the stories of children detained with one parent, but separated from the other. One woman was detained with her children and separated from her nephew, who was transferred to the care of a foster family.

But neither the Bush nor Obama administration had a policy that had the effect of widespread family separation, said Sarah Pierce of the Migration Policy Institute. “Nothing like what the Trump administration is doing has occurred before,” she said.


“In the last five months, we have a 314 percent increase in adults and children arriving at the border, fraudulently claiming to be a family unit.”

— Nielsen

This requires context.

As The Times has previously reported, Nielsen’s statistical claim is correct, according to figures released from the Department of Homeland Security. But it is not evidence of rampant fraud.

There were 46 cases of fraudulent family claims in the 2017 fiscal year. In just the first five months of fiscal 2018, there were 191 cases. That is a 315 percent increase, but the comparison is not year to year. And those instances make up less than 1 percent of the families apprehended at the border.


“DHS is not separating families legitimately seeking asylum at ports of entry.”

— Nielsen

“If they enter the country at a port of entry and there are many of those along the border, they are not violating the law. The mother or father in that circumstance would not be prosecuted and the families are staying together. They’re — presumably, they are claiming an asylum and that’s — they would not be prosecuted and not be separated.”

— Attorney General Jeff Sessions, in an interview Monday with Fox News

This requires context.

The American Civil Liberties Union has filed a lawsuit on behalf of a Congolese woman who says her daughter was taken from her when she applied for asylum at a port of entry.

As The Times and others have reported, asylum-seekers are also being turned away when they do present themselves at ports of entry. Even when immigrants improperly cross the border, they can still legally seek asylum.

But the administration’s zero-tolerance policy subjects all who cross the border illegally, including asylum-seekers, to prosecution.