President Donald Trump wrongly blamed Democrats for a Trump administration policy that will separate parents and their young children caught entering the U.S. illegally.

“We have to break up families,” Trump claimed, because of “bad laws that the Democrats gave us.” But there is no such law. Instead, it’s the administration’s decision to criminally prosecute all immigrants who cross the border illegally that will cause children to be separated from their parents.

In early May, Department of Homeland Security Secretary Kirstjen Nielsen directed her department to refer all unauthorized immigrants who cross the U.S. border to federal prosecutors. It’s in accordance with the Department of Justice’s new “zero tolerance” policy on illegal immigration at the Southwest border.

Parents would be sent to federal court under the custody of the U.S. Marshals Service and then placed in a detention center, according to a DHS spokesperson. Their children, minors who cannot be housed in a detention center for adults, would be transferred to the Department of Health and Human Services for placement in a juvenile facility or foster care if they have no other adult relative in the U.S. who can take them in.



“It is the government’s choice whether to criminally prosecute someone for illegal entry or reentry,” Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center in Washington, D.C., told us.

Trump made his remarks at a White House meeting on so-called “sanctuary city” policies in California. He told Nielsen, who was in attendance, that Democrats were responsible for the “tough” situation involving immigrant families.

Trump, May 16: 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. The Democrats gave us that law. It’s a horrible thing. We have to break up families. The Democrats gave us that law and they don’t want to do anything about it. They’ll leave it like that because they don’t want to make any changes. And now you’re breaking up families because of the Democrats. It’s terrible.

Since at least the administration of George W. Bush, a Republican president, Immigration and Customs Enforcement has held many parents and children who crossed the border seeking asylum in family detention centers. Those families have been kept together until they go before an immigration judge or are formally removed from the U.S.

Prior to that, “family units were hardly ever detained, but rather processed and released with a notice to appear at immigration court, especially if they met the credible fear of persecution criteria for a claim to asylum,” according to the Bipartisan Policy Center, a think tank that promotes bipartisan policy solutions.

So, to what Democratic law is Trump referring?

A White House spokesman referred us to a DHS statement regarding a 1997 legal settlement and 2008 antitrafficking law affecting minors who are apprehended without a parent present:

Under the 1997 settlement, DHS could detain unaccompanied children captured at the border for only 20 days before releasing them to foster families, shelters or sponsors, pending resolution of their immigration cases. The settlement was later expanded through other court rulings to include both unaccompanied and accompanied children.

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 requires unaccompanied minors from countries other than Mexico and Canada to be placed in the care of the Office of Refugee Resettlement, or relatives in the U.S., while they go through removal proceedings. The bipartisan bill was approved by unanimous consent and signed by Bush.

(We wrote about both when Trump also wrongly faulted Democrats for the so-called “catch and release” policy that allows some immigrants caught in the U.S. without proper documentation to be released back into the U.S. while they await an immigration court hearing. See “FactChecking Trump’s Immigration Tweets” for more details.)

But neither the court settlement nor the 2008 law require the Trump administration to “break up families.”

They require the government to release children from custody after a certain period of detainment, said Sarah Pierce, a policy analyst at the Migration Policy Institute. But they don’t require that parents continue to be held in immigration detention.

“The government absolutely has the option to release the parents,” as well, Pierce said. That’s as long as they aren’t a flight or safety risk, she added.

Brown, of the Bipartisan Policy Center, said the Trump administration’s decision to bring criminal charges against the parents — rather than follow the civil removal process — will result in children being separated from their parents.

“It is the government’s choice whether to criminally prosecute someone for illegal entry or reentry,” Brown wrote in an email to FactCheck.org. “That is the quintessential definition of ‘prosecutorial discretion.'”

“Historically, most immigrants were not prosecuted, even when the law allowed for it, they were simply removed in civil proceedings,” she said. “The significant uptick in criminal prosecution began under President George W. Bush, and continued through the early Obama administration.”

U.S Attorney General Jeff Sessions outlined the new enforcement actions on May 7.

“If you cross this border unlawfully, then we will prosecute you. It’s that simple,” Sessions said. “If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”

Because minors cannot be kept in jails for adults, children would be separated from parents charged with committing a crime, Brown explained. Children would then be considered unaccompanied minors and turned over to the refugee resettlement office.

In fact, White House Chief of Staff John Kelly, who was Homeland Security secretary before Nielsen, indicated in March 2017 that DHS was considering splitting up parents and children as a strategy to deter other families from illegally immigrating to the U.S.

Other administration officials — including Nielsen and ICE’s top official, Thomas Homan — have since denied that is the intent.

“I want to be clear. DHS does not have a blanket policy on separating families as a deterrent,” Homan, reportedly said at the press event with Sessions. “Every law enforcement agency in this country separates parents from children when they’re arrested for a crime. There is no new policy. This has always been the policy. Now, you will see more prosecutions because of the attorney general’s commitment to zero tolerance.”

Even so, the decision to prosecute all offenders is one that was made by the current administration. It is not a law that “Democrats gave us,” as Trump said.