Photo: John Moore, Staff / Getty Images Photo: John Moore, Staff / Getty Images Photo: Michael Ciaglo, Houston Chronicle / Houston Chronicle Photo: Michael Ciaglo, Staff Photo: John Moore, Staff / Getty Images Photo: Marie D. De Jesus, Houston Chronicle Photo: Marie D. De Jesus, Houston Chronicle

A two-year-old Honduran girl crying as Border Patrol agents patted down her mother.

Photographs of small children in cages at federal processing facilities.

Heart-wrenching accounts of parents separated from their children at the southern border, including one father from Honduras who killed himself after his wife and son were taken from him.

It's all been unsettling to many Americans, and also confusing. President Donald Trump has insisted repeatedly that Democrats are to blame for his administration's new separation policy. Since it was implemented in April, more than 2,000 children have been removed from their parents after the adults were jailed for illegally crossing the border.

Attorney General Jeff Sessions and Homeland Security Secretary Kirstjen Nielsen have defended the practice, saying the government is fully enforcing a law that has been on the books for decades. They liken it to Americans who are taken from their children when they are jailed for committing a crime.

But some top Republicans and conservative commentators have expressed growing discomfort with the policy. Former Fox News host Bill O' Reilly called it "unacceptable." Former first lady Laura Bush said it is cruel and "immoral."

"Our government should not be in the business of warehousing children in converted box stores or making plans to place them in tent cities in the desert outside of El Paso," she wrote in a Washington Post op-ed column. "These images are eerily reminiscent of the Japanese American internment camps of World War II, now considered to have been one of the most shameful episodes in U.S. history."



An avalanche of false reports have gone viral over the practice, some claiming that the government is "stealing" children. A few readers have even suggested that because photos of a federal childcare facility in the Rio Grande Valley depicted largely immigrant boys, something nefarious may be happening to the girls.

On such an emotive, politically-charged issue, there's sure to be a lot of misinformation. We break it down for you here:

Is there a law requiring the separation of immigrant families at the border?

No.

But crossing the U.S. border without a visa or other authorization and between official ports of entry has been a misdemeanor crime for decades.

Some say it was first proposed in 1929, when Coleman Livingston Blease, a pro-lynching Democratic senator from South Carolina, pushed it to cut down on Mexican immigration.

White House counselor Kellyanne Conway, speaking on "Meet the Press," argued that the policy is a function of the Immigration and Nationality Act of 1952. Congress that year was controlled by Democrats and the president was Democrat Harry Truman.

Either way, the federal criminal statute was rarely used until the last decade, reserved instead for only the most egregious offenders or those with serious criminal records.

In 2005, President George W. Bush's administration launched "Operation Streamline," first as a pilot program in Del Rio, Texas.

Under that plan, aimed at deterring illegal border crossers, the government criminally prosecuted most migrants caught within a stretch of the border en masse and channeled them into the federal justice system, where the Bureau of Prisons has more resources to hold them for longer periods of time before they can be deported.

Over the next few years, similar prosecution initiatives were tried to varying degrees in six of the nine southwestern border sectors, except for California where U.S. Attorneys declined to take part.

Photo: Courtesy Photo

STREAMLINED: Trump pressing for mass criminalization of illegal border crossers

Even under "Operation Streamline," U.S. attorneys rarely prosecuted parents traveling with their children.

One reason was that the White House, under both Bush and President Barack Obama, did not want to separate parents from their children, who by law cannot be held in federal prison.

LISTEN: Children Who've Just Been Separated From Their Parents at the Border

But the sheer number of offenders, thousands a day, and the limited capacity of the federal courts also realistically meant most prosecutors used discretion in whom to charge.

The expense to the federal courts and Bureau of Prisons of criminalizing what is usually a civil offense is staggering. Detaining migrants on such charges alone costs some $1 billion a year, according to estimates by Grassroots Leadership, an advocacy group in Austin opposing incarceration.

Even without Trump's recent policy, the crime of illegal entry made up almost half of all federal cases and 80 percent of the dockets in the Western and Southern Districts of Texas, which includes Houston.

How is the Trump administration's policy different from what was done before?

Sessions announced in April the that the government would enact a "zero tolerance" approach to prosecute all illegal border crossers, including parents traveling with children and those whom are seeking asylum.

Central American families and children make up the fastest-growing demographic of migrants here illegally, one-quarter of all apprehensions at the southern border last year.

Shortly after taking office, the Trump administration unveiled a series of policies to discourage such families from making the dangerous journey north. It threatened to prosecute parents if they paid smugglers to bring children and, if necessary, to separate families at the border.

The number of those coming here plummeted.

Facing intense criticism from advocates, then-Homeland Security Secretary John Kelly backed away from his initial threats, saying it would occur only in extenuating circumstances such as an illness.

Last summer, however, as family arrivals rose once more and Kelly left to become Trump's chief-of-staff, Sessions directed U.S. Attorneys to expand the prosecution of immigration crimes.

Federal officials in certain areas along the border quietly began prosecuting parents for illegal entry, an unusual turn of events.

Detaining parents while requiring their children go to federal shelters is tantamount to a de facto policy of family separation, as the Houston Chronicle first reported last November.

READ: Trump moves to end 'catch and release', prosecuting parents and removing children who cross border

In April 2018, Sessions announced the government was expanding the strategy across the border.

"Having children does not give you immunity from arrest and prosecution," he reiterated in a speech last week in Fort Wayne, Ind.

He and other White House officials have also said the policy is necessary to deter other parents from coming here illegally with their children.

Photo: The Journal Gazette, MBO / Associated Press

READ MORE: Trump administration defends family separations at border

Though overall illegal crossings are at their lowest in decades, new statistics this month show that the number of families and children coming here rose another 14 percent in May to almost 16,000, reaching levels last seen during President Barack Obama's administration.

What happens to the children after the parents are separated?

Once adults are taken to a federal holding area to be prosecuted for the crime, their children are considered "unaccompanied."

The government has 72 hours to transfer them to the custody of the Office of Refugee Resettlement, a subset of the Department of Health and Human Services that is in charge of caring for immigrant children.

ORR places the children in one of about 100 federal foster care facilities around the country that are licensed to care for minors.

How long do they stay there?

That depends.

In the past, including during the so-called surge of 2014, most unaccompanied children came to the United States alone. They tended to be older, since they could travel by themselves, with most of them between the ages of 10 and 17. The majority were coming here to reunite with their parents or other relatives.

Most such children were quickly placed with their family after the federal government did a basic screening to ensure they weren't being trafficked.

Photo: Carolyn Cole, MBR / TNS

What is different now?

Children who have been separated from their parents at the border tend to be younger as many are logistically unable to come here alone.

It also may be harder to find relatives to place them with as their direct family members -- their parents -- have been removed from them.

They may not have other family here.

What happens to the parents?

Parents are usually charged with the misdemeanor crime of improper entry and plead guilty in speedy mass hearings that critics have called "assembly-line justice."

They usually receive a sentence of a few days in federal prison or "time served" and are taken back to Border Patrol processing facilities before being sent to immigration detention centers run by the Department of Homeland Security.

From there, they can be quickly deported under a process known as "expedited removal" that applies to those arrested near the border and means they don't necessarily see an immigration judge.

What about those seeking asylum?

One of the biggest concerns advocates express about "zero tolerance" prosecution initiatives is that it not only wrongly punishes migrants with valid asylum claims - well-founded fears of persecution in their home countries - but may prevent them from making such petitions at all.

The Department of Homeland Security's own Office of Inspector General identified this as a problem in 2015, noting that the United Nations convention on refugees, to which the U.S. is a signatory, holds that countries should not impose penalties on refugees who enter unlawfully to ask for asylum.

LEGAL LIMBO: Her husband murdered, her son taken away, a mother seeking asylum tells a judge, 'I have lost everything'

Photo: Houston Chronicle

The federal government argues that migrants can request asylum after serving their prison sentence.

Are parents reunited with their children?

Homeland Security Secretary Kirstjen Nielsen has said the administration's policy of prosecuting parents is just like "what we do every day in every part of the United States when an adult of a family commits a crime. If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family. We're doing the same thing at the border."

The difference is that Americans imprisoned for a crime generally know where their children are while they are being detained.

And once they complete their criminal sentence, they are typically reunited with their children unless a judge finds they are unfit parents -- usually a very high bar.

Lawyers, social workers for children, advocacy organizations, and media reports indicate immigrant parents and children are not always reunified after the adults serve their time.

In one case, a Guatemalan father had his 18-month-old son taken from him and was told only that the boy is in a shelter "somewhere in Texas."

Photo: Submitted

SEE: Immigrant families separated at border struggle to find each other

The father served a few weeks in federal prison for the crime before being transferred to an immigrant detention facility in El Paso. He was detained for three months without any information about his toddler.

In October, he was deported alone.

Five months after the last time he saw his son, the father was reunited with him in December.

Immigrant advocates say Esteban Pastor's story is a troubling indicator of all that could go wrong, especially when the children involved are so young.

Parents fleeing violence might not return to their homes after being deported and change their numbers or contact information so that it's even more difficult for social workers representing their children to later find them.

Children also acquire their own immigration cases and legal advocates once they are separated from their parents and guardian ad litems may argue that it's in their best interest not to return to a situation of danger.

Photo: Godofredo A. Vasquez, Houston Chronicle / Houston Chronicle

Why is it so difficult for parents to find information about their children's whereabouts once they have been separated?

Unaccompanied children have certain privacy rights to protect them. The government must verify that adults are not trafficking children before they can release information about them.

Officials have pointed to a 1-800 number which parents can call to find the whereabouts of their kids.

But advocates say that parents in detention cannot receive call-backs, which is required by the agency.

Photo: Lomi Kriel/Houston Chronicle

READ: New 'zero tolerance' policy overwhelms South Texas courts

Mainly, however, there seems to be startlingly few systematic policies in place between the Departments of Justice and Homeland Security, which detain the parents, and Health and Human Services, which is in charge of the children, to communicate on the issue.

The Office of Refugee Resettlement has said it is "not routinely informed about how or when the (unaccompanied child) became separated from their parent(s) or the whereabouts of the parents."

Sometimes parents, attorneys and relatives are able to contact the agency. In other cases, children report that information.

Sometimes they fall through the cracks.

"We have seen children as young as 18 months deported without their parents and more commonly, parents deported without their children," said Michelle Brané, executive director of the migrant rights program at the Women's Refugee Commission, a national advocacy group. "Parents arrive in Central America with no idea of how to get their children back."

How is this situation different from the unaccompanied minor "crisis" in 2014?

Nearly 70,000 unaccompanied children and almost as many families, many of them fleeing violence and poverty in Central America, came to the U.S. in 2014. It overwhelmed Obama's administration, and then, as now, photographs of children in caged Border Patrol cells shocked the nation.

The Obama administration decided to hold many women and children in three detention centers built specifically for families, two of which are in Texas.

Why doesn't the Trump administration also lock up families together instead of separating parents and children?

Short answer: Because they can't.

Under a landmark 1997 legal settlement governing the rights of children in detention and known as Flores, unaccompanied children can only be held in a detention-like facility for a short period of time. They are required to be treated a certain way, such as receiving a specific number of hot meals and snacks a day, for example.

In 2016, a California federal judge ruled that the settlement applied to families as well, effectively requiring that they be released within 20 days. Many were freed to return for a court date sometime in the future.

Critics said many never showed up, and Trump campaigned on ending the practice of so-called "catch and release."

Immigrant advocates argue practically all those freed under an "Alternatives to Detention" program, including electronic-ankle monitoring bracelets, complied with court requirements.

The Trump administration ended that program last year.

Why is Trump blaming Democrats for family separation?

The president and some of his supporters want Congress to override the Flores Settlement, and change a 2008 bipartisan law intended to protect children from trafficking. The legal agreement and the law prevents the government from detaining families together for long and from quickly deporting many children who are not from Mexico or Canada.

What happened with the 1,500 "missing" kids?

On Memorial Day weekend, a flurry of false reports went viral conflating family separations at the border and the fate of about 1,500 unaccompanied children of whom the federal government testified it had lost track.

In reality, those children had been released to relatives or other adult sponsors.

When the government followed up one month later in a single phone call, they could not reach them. The families may have decided not to pick up the phone or changed their numbers.

Advocates agree that most of those children probably are fine.

Photo: Michael Ciaglo, Houston Chronicle

Have some children been trafficked after being released to sponsors?

Yes. In just one example, several Guatemalan teens were forced to work against their will on an Ohio egg farm.

WATCH: Trafficked in America

Children have also suffered abuse in the federal shelters run by the Office of Refugee Resettlement. A 2014 Houston Chronicle investigation found that youths inside the insular system quietly suffered abuses by the people paid to protect them.

MUST READ: CROSSING ALONE

How many children are being detained now and where are they?

Health and Human Services said Monday more than 11,780 children are currently in its custody.

A spokesman, Kenneth Wolfe, said the agency has about 700 open beds and more than 1,000 beds on "reserve status."

The agency has put out calls to its federal contractors to find more space.

Last week, Southwest Key Programs, a Texas nonprofit with a lucrative federal contract to care for unaccompanied children, confirmed it has signed a lease with the owner of a downtown Houston facility at 419 Emancipation Ave.

Its application with the state requests a general residential operating license to hold up to 240 children between the ages of "0 to 17." Several stakeholders who work with immigrant minors said they have been told the facility would largely serve "tender age" children who are younger than 12, as well as pregnant and nursing teenagers.

The agency, which is paid more than $400 million to care for thousands of immigrant children, argues it has been operating such shelters for two decades.

"Over the years, we have housed many children under the age of 4 who were sent by (the federal government) to stay in our shelters without a parent, family member or guardian," a spokeswoman, Cindy Casares, said in a statement. "While they stayed with us, we did the same thing we do for every child in our care. We worked to reunify them with family or sponsor as quickly as is safely possible."

Photo: Michael Ciaglo, Houston Chronicle / Houston Chronicle

READ MORE: Immigrant children's shelter considered for downtown Houston

The government has also opened a tent-like structure in Tornillo, south of El Paso, to house hundreds of migrant children. And it is considering keeping some children on military bases as the Obama administration briefly did in 2014.

SEE: Trump administration looks to military bases in Texas to house immigrant children

Previously the small percentage of children under 10 who were deemed "unaccompanied" were usually held in government residential care for only a short period before typically being placed with foster parents contracting with federal agencies.

Such very young children have specialized needs from older kids who can more easily be held in a group setting.

But the sheer number of very young children in recent weeks has overwhelmed the government and its contractors, and agencies have put out emergency calls for more such foster parents.

In the meantime, advocates say the shelter in Houston would be the first to possibly provide longer-term care for such very young children.

Why do so few photographs from inside federal childcare shelters show girls?

No one can just walk into a federal children's shelter and demand access, as U.S. Sen. Jeff Merkley, a Democrat from Oregon, found out this month when he was barred from entering one of Southwest Key Program's biggest facilities, a shelter in Brownsville caring for almost 1,500 immigrant children, most of them between the ages of 10 and 17.

SEE: Oregon senator finds closed doors in South Texas migrant children's shelter

After Merkley's criticism of the facility went viral on social media, Southwest Key offered a media tour and allowed one pool photographer to take pictures.

Photo: Senator Jeff Merkley

Program officials said most children in that particular shelter, an old converted Wal-Mart in Brownsville, just happened to be boys.

Do "zero tolerance" prosecutions work to deter parents from coming?

That's unclear.

An analysis by the Vera Institute of Justice, a New York nonprofit, found Bush's Operation Streamline had no long-term deterrent effect between 2005 and 2013.

The Government Accountability Office has also suggested immigrant return rates stayed basically unchanged over a longer time frame.

In a McAllen federal court last week, several migrants were back after having recently been deported. One faced the same charge in that very room exactly two weeks before.

Sister Norma Pimentel, who runs a migrant shelter near McAllen's downtown Sacred Heart Catholic Church, recently returned from a trip to Guatemala and El Salvador where advocates told her they were struggling with an influx of small children deported alone.

Parents tell her they have heard of Trump's policy and are afraid.

"But they're still coming," she said. "I ask them why and they say, 'It's worse for us to stay.'"

Honduras and El Salvador are two of the most violent countries in the world, and murderous gangs often forcibly recruit children.

GANG RULE: In El Salvador, gangs rule the streets with impunity

What happens next?

The United Nations has condemned the practice of family separation.

The Texas Civil Rights Project and other national advocacy groups filed a complaint with the Inter-American Commission on Human Rights this month, arguing the practice of separating parents and children violates international protocols.

READ: Advocates file human rights complaint to stop family separations at border

The American Civil Liberties Union filed a lawsuit to block such family separations in February and is expecting a federal judge's ruling soon.

The public defender's office for the Western District of Texas in a separate suit argued the practice violates parents' rights to due process as they plead guilty to the crime to reunite with their children. It is on appeal.

EXPLAINER: Why can't immigrants here illegally just apply for citizenship?

Photo: Marie D. De Jesus, Houston Chronicle

The growing legal reaction suggests the policy could perhaps meet the fate of some of the Trump administration's other controversial immigration initiatives. Federal judges blocked the so-called travel ban shortly after it was announced last year and it has been largely tangled up in legal wrangling ever since.

U.S. Attorneys could limit which parents they decide to prosecute.

Or the Trump administration could reverse course on its policy.

But its push back Monday suggests that might not happen soon.

lomi.kriel@chron.com

@lomikriel