With the high visibility of the US's current policy of separating families at the Southern border, I am wondering what the policy for incoming migrants was in previous administrations (Obama and Bush, in particular)? Were families separated? If so, under what conditions? Was there a difference between illegal crossings and asylum seekers?
Previous administrations, and the Trump administration until a few months ago, had a policy where only some people caught crossing the border illegally would be subjected to criminal prosecution (like people who were repeat offenders or who had a criminal record). Instead, most people just went through civil deportation proceedings. This changed a few months ago when Attorney General Jeff Sessions implemented a "zero tolerance policy", requiring the Department of Justice to criminally prosecute every single person caught crossing the border illegally.
The reason why this is relevant is that if a parent is criminally prosecuted, then they have to stay in federal prison awaiting trial, and that means parent and child will be separated, because kids can't be in federal prison. Here is what this article says:
To be clear, there is no official Trump policy stating that every family entering the US without papers has to be separated. What there is is a policy that all adults caught crossing into the US illegally are supposed to be criminally prosecuted — and when that happens to a parent, separation is inevitable.
Typically, people apprehended crossing into the US are held in immigration detention and sent before an immigration judge to see if they will be deported as unauthorized immigrants.
But migrants who’ve been referred for criminal prosecution get sent to a federal jail and brought before a federal judge a few weeks later to see if they’ll get prison time. That’s where the separation happens — because you can’t be kept with your children in federal jail.
In any case, it's not that no families were separated under previous administrations; some people who crossed illegally were criminally prosecuted, and if they had kids with them then they were separated from their kids. The difference is that it wasn't the policy for everyone who crossed illegally to be criminally prosecuted, and thus for everyone who crossed illegally to have their kids taken from them.
The previous policy, letting the parents out of detainment when the children were released, existed during the Barack Obama administration. A few years back, there was a surge taking advantage of how the United States handles children at the border.
The basic problem is that the US has a rule limiting children's detainment to twenty days barring special circumstances (e.g. if the child is accused of a crime beyond illegal entry to the US, the child may be detained by the criminal system). During the Obama administration, they handled this by letting the entire family out of detention when the children needed to be released. The result was unsurprising, the number of families with children seeking asylum at the border increased.
The number decreased when Donald Trump became president before increasing again (Department of Homeland Security).
The policy to release children after twenty days dates back to Bill Clinton's administration. In 1997, the Justice Department agreed to the Flores settlement agreement. The determination that that also applied to children who came with adult members of their families came later than the settlement agreement but may also date back to the Clinton administration.
In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act, which makes it harder to return children apprehended at the border to their own countries. DHS again.
The Trump administration position is that letting families with children out of detention automatically at twenty days is a loophole that
- Prevents them from properly screening the adult members of the family.
- Allows the families to evade further immigration screening.
- Promotes fraud and human trafficking, as we don't have proof that the children and the adults are in the same family.
The basic idea is that a family with children shows up and turns themselves in at the border. They then apply for asylum. There is a backlog in the asylum courts that is longer than twenty days, particularly considering that the claimant may take ten days to announce an attorney. They wait out the twenty days. Then they are released. Two thirds disappear and do not attend subsequent hearings.
The Trump administration position is that the law should be changed so that they can keep the entire family together in detention. As is, if they want to keep the adults, they have to separate the family.
When Trump first took office, families trying to take advantage of this system plummeted. But over time it became clear that Trump was still following the same system as previous administrations (due to the legal limitations). Fake asylum seekers have increased again, even with the threat of splitting up families.
Was there a difference between illegal crossings and asylum seekers?
Sort of. If someone admits to be crossing illegally, that person would go into a different legal system than someone claiming asylum. However, the truth is that most people requesting asylum are actually just illegal crossers who want to take advantage of the asylum request process.
It is not actually required to be in the US to apply for admission. Actual refugees could apply in their home country or at the embassy in a country along the way, e.g. Mexico. So anyone who claims to be seeking asylum at the US border is almost certainly not a real asylum seeker. The only asylum seekers who would legitimately show up at the US/Mexico border would be people seeking asylum from the Mexican government, which is rare.
Asylum requests outside the US do not involve a detainment at all, so there is no separation of children from parents.