Obama's Border & Immigration Policy Was Different From Trump's For This Key Reason

by Hannah Golden
Hannah Peters/Getty Images News/Getty Images

In the last couple of months, a policy change under President Donald Trump has resulted in thousands of children being separated from their parents after crossing the border illegally. Trump, in a series of statements and tweets in the last week, has said that the family separations happened on the Democrats' watch, and attention has turned to his predecessor, President Barack Obama. So did Obama separate families at the border? It's a valid question worth examination.

The short answer is that the intention under Obama was not to separate families, whereas the new policy specifically refuses to make exceptions for families.

The new "zero-tolerance" policy was announced by Attorney General Jeff Sessions and released by the Justice Department on April 6. Trump, White House Press Secretary Sarah Huckabee Sanders, and the Department of Homeland Security (DHS) Secretary Kirstjen Nielsen have all passed the blame for this practice onto a Democratic law. But no such law is on the books that requires families to be separated.

Policies under Obama also impacted families crossing the border, though. Here's how they were different.

The DHS is responsible for handling cases of illegal border crossing. Illegal entry can be treated as either a civil misdemeanor or a felony; the latter means being federally prosecuted and sent to prison. (A first-time offense is a misdemeanor, while re-entry is a felony.) Because children cannot stay in a federal prison with their parents, the result is separation.

While past policy also attempted to dissuade illegal border crossing, the "zero-tolerance" part of that is new. The Obama policy made exceptions for families crossing the border with children to avoid separating them. According to figures obtained by The Washington Post, only about 21 percent of cases between 2010 and 2016 were referred for federal prosecution. (Per CNN: Under both Obama and his predecessor President George W. Bush, tens of thousands of illegal immigrants were prosecuted via Operation Streamline, though as PolitiFact reports, most parents traveling with children were exempted.)

That's the key difference. Under the new Trump policy, the DHS must now refer all illegal arrivals for federal prosecution, with no exceptions made for parents with children.

Under Obama, thousands of families were detained while their immigration cases were pending, Vox reports, but they were generally held together in immigration detention while they awaited their cases. Upon a court ruling that deemed holding families for extended periods of time without a just cause unfair, most of them were let go. (This is known as "catch-and-release.") Until Trump's new zero-tolerance policy was implemented, many of the families "caught" under Trump's border patrol had to be released for the same reason.

Since the laws are strict about how long children can be held in immigration detention centers (72 hours max), the DHS transfers children to the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) while cases are pending. (Children that arrive in the country alone are automatically sent to ORR custody. From there, the ORR attempts to locate a family member or close relative living in the U.S. to release the child to; most children making this journey alone are intending to reunite with a parent or relative. Remember the news that the HHS has lost track of nearly 1,500 children? That was this category of children who'd been released.)

The new policy allows officials a workaround to the 72-hour limitation on detaining children. By prosecuting every illegal immigrant, it becomes legal to separate children from their parents awaiting trial, with the kids being sent to a detention facility and later to the ORR.

Those that arrive in the U.S. via proper channels (ports of entry) with asylum claims are (theoretically speaking) not candidates for detention. What's happening under Trump, per Vox, is that now, even those that follow protocol in attempting to relocate to the U.S. are reportedly being subjected to the same practices. (Adding to this: Sessions announced on June 11 that domestic and gang violence would not qualify as legitimate claims for asylum.)

While Obama's administration might have resulted in some familial separations, they didn't target both parents. Under the Alien Transfer Exit Program (ATEP), also called "lateral repatriation," an obscure Obama-era policy that would pick up people who'd crossed the border illegally and drop them off at another point, thus separating them from their families. But importantly, this targeted Mexican males between certain ages, not mothers. The policy allowed for holding the rest of the family in a detention center, but it did not include separating mothers from their children in that process.

While some families were separated under Obama, this was a rare occurrence and never the target of a policy. Law professor Denise Gilman told PolitiFact that, in those rare instances, "These families were usually reunited quite quickly once identified, even if that meant release of a parent from adult detention."

At the end of the day, the numbers speak for themselves. Under the eight years of Obama's tenure, few families were separated. Under Trump, nearly 2,000 families were separated over a six-week period after the policy's institution, per the DHS. And as Vox points out: This count does not include families seeking asylum through legal channels who were then separated.

In a nutshell: The practice of intentionally separating both parents from children as a deterrent for illegal entry was not an Obama-era policy.