It’s unfortunate that President Biden along with his allies in news media have engaged in a series of untruths related to the child separation policy of detained illegal immigrants at our southern border this week. It’s not surprising though, considering the pervasive misinformation related to this topic during the Trump administration as he successfully implemented a policy to reduce the proliferation of unlawful entry into our country. I addressed this topic at length in prior years but it’s important to revisit the facts regarding the law that’s led to child separation policies.
First, it’s important to note that there’s no law specifically governing the immigrant child separation policy. Second, the origin of the policy from a legal perspective derives from action taken during the Clinton administration. The origin stems from a 1997 court ruling/settlement “The Flores Case”. The case involved a 15-year-old girl who was detained and held with adults in a detention center for those who lacked immigration status in the US. She was at the facility for approximately two months prior to being processed. During her time being detained with adults, there were a series of issues/concerns/vulnerabilities she was subjected to that were later litigated.
As part of a federal settlement in the Flores case this agreement was reached:
The government cannot hold minors in adult detention centers for more than 20 days and must use the least-restrictive means necessary for that detention. After 20 days, federal authorities must transfer custody of children either to their legal custodians or to facilities that are licensed by state child-welfare organizations to care for children.
The only change since 1997 involved a 2015 court ruling that further expanded the definition to include adults traveling with parents – rather than just children to remove ambiguity about the detention policy for family units. It was the legal system, under the Clinton and Obama administrations, that defined these policies. You’ll recall the Homestead Child Detention Center was in regular use during the Obama administration and had been in use since the Bush administration as needed. The use of like facilities and separation policies had nothing to do with President Trump or his administration. What changed during the Trump administration was the pace of unlawful entry via the use of caravans.
Given the crush of asylum seekers and illegal immigrants being detained at the southern border the average process time for cases to be heard reached a year. With minors having to be held in separate facilities from adults and the backlog of cases setting records due to the crush of the caravans, record numbers of minors had to be transferred to child-specific facilities, as was mandated by the courts, no later than 20 days after apprehension. The same policy in play during the Trump administration was used during the Clinton administration, Bush administration, and Obama administration. There are two sides to stories and one side to facts.
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