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How U.S. immigration laws have changed over the past 25 years

By Emilie Plesset
Gwen Ifill Fellow

President Trump signed an executive order Wednesday to stop his administration’s policy of separating children from their parents at the U.S.-Mexico border. The announcement contradicts earlier statements from administration officials, including the president, who said only Congress has the power to end the policy.

The House also plans to vote on two Republican immigration bills Thursday that make changes to the immigration system.

The Trump administration’s “zero-tolerance” immigration policy has separated more than 2,000 children from their parents in the past few weeks. The policy has garnered bipartisan outrage and condemnation by all four living former first ladies, including by former first lady Laura Bush, who called the policy “cruel” and “immoral” in a recent Washington Post op-ed.

Here’s a look at how immigration laws have changed over the past 25 years to get to this point.

President Bill Clinton

After several lawsuits were filed against the Clinton administration over the poor conditions The Justice Department negotiated a settlement in the 1997 Flores v. Reno case, mandating that migrant children be released “without unnecessary delay” to a parent, relative, or legal guardian. The agreement also finds that the government “shall place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs.”

President George W. Bush

The Bush administration launched Operation Streamline in 2005, which heightened efforts to criminally prosecute people illegally entering through one Border Patrol sector in Texas. Under the policy, all migrants illegally crossing the border, with exceptions for those traveling with children, were referred for prosecution. The program was eventually extended to border sectors in other states and continued under the Obama administration. Operation Streamline also introduced “assembly-line justice,” where multiple defendants have their immigration hearings at the same time. This practice continued under the Obama administration and has recently increased under Trump administration policies.

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In 2008, Bush signed the bipartisan Trafficking Victims Protection Reauthorization Act, which says that the government cannot detain children trying to enter the United States. The law applies to children of all nationalities, except Canadian or Mexican, and exempts them from being promptly deported back to their home countries.

President Barack Obama

In 2014, the Obama administration experienced an influx of people from Central America trying to cross the southern border. To cope with the surge of illegal crossings, the administration expanded the detention of immigrant families and opened new detention facilities specifically designed to hold women and their children in administrative custody. The Department of Homeland Security initially said detaining families was a deterrence method, but a federal court found the strategy to be unconstitutional.

The administration’s immigration policies were met with several other setbacks in federal court, including in 2015, when a federal judge ruled that the two new Texas detention centers violated the legal requirements for housing children as defined by the 1997 Flores settlement. The U.S. 9th Circuit Court of Appeals later upheld the decision in 2016, requiring that the government should release all children, whether they crossed the border alone or with parents. The court did not address the release of parents accompanying their children, but also did not mandate their prosecution or separation.

President Donald Trump

The Trump administration decided to adopt a “zero-tolerance” policy in pursuing criminal prosecution against anyone, including adults accompanying children, who illegally crosses the U.S.-Mexico border between ports of entry. While the Obama administration prioritized the criminal prosecution of repeat offenders or people who committed felonies, Trump issued an executive order in January 2017 that referred only to “criminal offenses,” broadening the policy to include misdemeanors, like illegally crossing for the first time.

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Rather than being held in detention facilities, migrants who face criminal prosecution are held in federal jail before having their case heard by a federal judge, who then decides whether the individual will receive a prison sentence. First-time offenders who plead guilty are usually sentenced to time served.

Because children cannot be held in jail, they are separated from their parents, deemed unaccompanied minors and placed in the custody of the U.S. Department of Health and Human Services. The Office of Refugee Resettlement, which is housed under HHS, is tasked with finding a relative or family friend in the United States so the child can be released into their care.

There have also been some reported cases of families being separated after legally presenting themselves for asylum at a U.S. port of entry. The Trump administration claims families are only separated at ports of entry if officials are concerned that the child is in danger or the adults are not the child’s legal guardian.