Obama Used Family Separation, Too: A Court Stopped It

You might recall these images of children—mostly teenagers— who hopped on long freight trains that were crossing the Mexico-U.S. border in 2014. A surge of gang violence in Central America compelled parents to put their kids on these trains. Other families escaped the gang violence by fleeing together to the U.S.

The Obama administration was not in favor of open borders nor soft on immigration. As the surge grew out of control, they separated families, too, in makeshift detention centers. The ACLU filed for an emergency ruling to stop the practice.

The practice was halted by a court ruling in 2015. The Obama administration was ordered to stop detaining asylum-seeking Central American mothers and children in order to deter others from their region from coming into the United States.

The law that President Trump refers to in tweets is complicated. It grows out of a 1997 case (involving the Clinton version of ICE, then called INS).

The 1997 case resulted in an agreement, called the “Flores Settlement,” between the executive branch and immigration plaintiffs.

As explained in a recent ruling by the Ninth Circuit in California:

“Under a 1997 consent decree known as the Flores settlement, unaccompanied children could be held in immigration detention for only a short period of time; in 2016, a federal judge ruled that the settlement applied to families as well, effectively requiring that they be released within 20 days. Many were released — some with GPS ankle bracelets to track their movements — and asked to return for a court date sometime in the future (underlining added to show difference in types of border crossing situations).”

Congress codified the Flores Settlement, meaning they fleshed out more specific aspects of the no-separation policy.

The Ninth Circuit boiled it down in these terms:

“Most relevant to this case, the Act also transferred a number of the functions relating to the care of unaccompanied minors from the former INS to the Director of the Office of Refugee Resettlement (“ORR”) of the Department of Health and Human Services (“HHS”).

The Act charges ORR with “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child.”

To that end, the [Act] gives ORR responsibility for “coordinating and implementing the care and placement of unaccompanied alien children,” “ensuring that the best interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child,” “implementing policies with respect to the care and placement of unaccompanied alien children,” and identifying “a sufficient number of qualified individuals, entities, and facilities to house” such children. 

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Key to note, neither the Flores Settlement nor the 2002 law deal with families that are separated at the border. They deal with unaccompanied minors (teenagers). 

That is why the Obama and Trump administrations have said that there is legal authority to separate families.

My take? Shame on the Obama administration. Shame on the Trump administration. 
A gap in the law-- meaning that the Flores Settlement and 2002 law only dealt with unaccompanied teenagers, not families separated at the border-- is not a green light to act immorally.