The legal basis for separating immigrant families at US border

The administration of President Donald J. Trump has come under increasing public pressure this week over its policy of separating children from parents who enter the United States without legal documentation along the nation’s southern border.

However, Trump backed down from the stance on Wednesday, issuing an executive order to stop the practice. The order required that immigrant families be detained together when they are caught entering the country illegally for as long as their criminal proceedings take.

Criticism had mounted since Democratic Senator Jeff Merkley was refused entry into a migrant detention facility in Texas earlier this month (CBS News).

In an editorial in Sunday’s The Washington Post, former first lady Laura Bush condemned the policy as “cruel” and “immoral,” raising a comparison with the World War II-era detention of Japanese-American citizens.

According to the Associated Press, about 2,000 minors have been separated from their families since the beginning of the Trump administration’s “zero tolerance” policy at the U.S. border, announced by Attorney General Jeff Sessions on April 6. The children are being held in detention centers while their parents or guardians are held in federal custody as they await court dates.

President Trump and members of his administration have repeatedly claimed U.S. law requires separating families at the border. Many elected officials and media outlets have disputed this claim (The New York Times).

The Trump administration has cited—and appears to be basing its legal claims on—the outcome of the decision of a 1993 U.S. Supreme Court case known as Reno v. Flores (a class action lawsuit brought by migrant juveniles who protested their arrest and detention), and the subsequent 1997 Flores Settlement Agreement. In broad terms, under U.S. law, adults are separated from their children when they’re facing criminal proceedings and taken into federal custody.

U.S. law does not explicitly state families must be separated when entering the country illegally. It is the “taken into federal custody” part of the equation that initiates separation and detention efforts.

Many recent sources offer varying interpretations of the requirements of laws and policies that have arisen as a result of Reno v. Flores.

These include a May 28 article from the National Review that explains the issue from the point of view of U.S. Marshals who follow applicable laws when taking undocumented migrants into custody; and a June story from The New York Times that says the White House is misplacing blame on Reno v. Flores to justify its policy of breaking up families.

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