DAVID GREENE, HOST:
OK, so just how far apart is President Trump's approach to immigration from President Obama's? Obama, after all, took a lot of heat for his policies, particularly after a surge of migrants began coming through the U.S.-Mexico border in 2014. Leon Fresco was a deputy assistant attorney general in the Obama administration.
LEON FRESCO: The Obama administration said, we are being faced with this humanitarian crisis on the southern border where Border Patrol agents and ICE agents who are supposed to have immigration functions are doing things like changing diapers and giving milk and things that they're not operationally trained for. We have to figure out some way to address this.
GREENE: Fresco handled a number of immigration lawsuits for President Obama's DOJ, and he spoke with Steve Inskeep this week.
FRESCO: Prior to 2014, the history of America was a history of you let the family in together and you give them an immigration proceeding. That was pretty much it because...
STEVE INSKEEP, BYLINE: Meaning that at some point they'll come back to court, or they're supposed to anyway...
INSKEEP: ...And find out if they can stay or if they must go (ph).
FRESCO: Correct. That was the history of America.
GREENE: OK. But after 2014, the Obama administration said there was a problem. Some of the new arrivals were not showing up in court.
FRESCO: But because there were so many people coming...
FRESCO: ...You have to have some mechanism, and that mechanism is either detention so that you make sure they show up to court or the good faith of the individual who's coming over to show up to court. Those are your choices essentially.
INSKEEP: Well, let's underline a couple of things that I'm learning as you're talking that I think are extremely relevant now. First, the Obama administration was facing the question of how to enforce the law, how to let those stay who deserve to stay and how to deport those who are - who need to be deported.
FRESCO: That's correct.
INSKEEP: So whenever anybody today says President Obama had an open borders policy, that's just a lie.
FRESCO: That is a complete falsehood. In fact, President Obama was constantly called the deporter in chief, and all you need to do is go on my Twitter feed and see people say you're the guy who kept trying to deport everybody.
INSKEEP: The second thing that you're underlining for us is that even though the unaccompanied minors are the people who made news, and there were thousands of them, there were also families coming across.
FRESCO: Absolutely - at equal levels.
INSKEEP: And your dilemma was, what do you do with the families? What prevented you from just holding the parents and the children together?
FRESCO: So that is what the Obama administration tried to do. They constructed one 2,500-person facility in Karnes, Texas, and another one in Dili, Texas. And those look like, basically, Econo Lodge hotels that you cannot leave that are enclosed. And so the idea was keep people in family detention until their case was decided.
INSKEEP: OK. What was wrong with that?
FRESCO: So the people who in 1986 filed a lawsuit called Flores versus Meese at that time because Ed Meese was the attorney general...
INSKEEP: Wow - long time ago.
FRESCO: Yes. Then that case was settled in 1996, and the settlement said that if you have an unaccompanied minor in your custody, you have to let them out. The problem was that settlement agreement did not use the word unaccompanied minor. It used the word minor, but because it only used the word minor, no minor can be held in any custody whatsoever.
INSKEEP: Even if they're with their parents...
INSKEEP: ...It's still custody...
FRESCO: Correct - can't do it.
INSKEEP: ...Got to let them go.
FRESCO: Got to let them go. And so then if you want to hold somebody in custody, you have to separate the parents and the children or you have to let the parents and the children in together to the United States and trust them to appear at their court proceeding. And so this is the conundrum that we face. Now, the Obama administration - and I was of this belief also - said, look; even if you think securing a border is a noble goal - and I think it's a noble goal - there are certain things you don't do to achieve noble goals. You don't kill people. You don't torture people, et cetera. And so we said on that line of morality is we're not going to separate them.
INSKEEP: What sort of things did you do to supervise and monitor them given that you couldn't hold them in detention?
FRESCO: So there is an amount of funding that exists - although it's not sufficient for everybody, so the funding would have to be plussed up - for electronic monitoring, and electronic monitoring includes different things. It includes ankle bracelets, but it doesn't need to. If you have an iPhone, you can actually put an app in somebody's iPhone that will buzz every 12 hours, and then what you do is you take a picture, and it says you are where you're supposed to be.
INSKEEP: Just check in with somebody, in other words.
INSKEEP: So the Trump administration comes along, and they make a policy decision that they're going to prosecute everyone who is found crossing the border illegally.
INSKEEP: Is that different than the policy of the Obama administration?
FRESCO: The Obama administration - and every administration at least in my lifetime, and I'm 40 - never had a policy of prosecuting anyone coming across the border unless they fit one of two criteria. No. 1, they had some sort of drugs on their person, or they were involved in some sort of, like, sex trafficking operation of that kind. Or in the rare occasions that there wasn't an aggravating factor, it had to be a single male basically. Those were the two ways in which you saw prosecutions. You never saw prosecutions that separated parents and children, and you certainly never saw that for the purpose of causing the separation. That's completely new.
INSKEEP: Well, surely somebody is listening and thinking, why shouldn't you prosecute everybody that you catch?
FRESCO: I think there would be two arguments not to do that. The first one is, interestingly enough, when you keep the family together, you can put the entire family in what's called the expedited removal process. And so their case gets decided quickly. If they win, they win. If they lose, they lose. If you separate the family, it's actually illegal to have an unaccompanied child, which is what you turn the child to, put into expedited removal proceedings.
INSKEEP: Suddenly you create a legal nightmare.
FRESCO: And, in fact, it's extremely expensive. It costs about $600 a day to have a child in the custody of one of these shelters, where if you had the best electronic monitoring system in the world, you're talking about $15 a day. And then the second thing is people make this argument, which I think has some basic sense to it, which is, look; when you commit any crime, you're risking to be separated from your children. I get that point. But what never happens in America when an American commits a crime is that the child is then sent to an orphanage with thousands of other kids at that orphanage. We got rid of orphanages a long time ago in America. And what we have now are foster homes with three or four kids, or you get sent to an uncle or a cousin or something...
FRESCO: ...Grandmother, whatever. We don't have these thousand-person orphanages anymore. And those are a security risk waiting to happen. You can't have a 10-year-old in a facility with a 17-year-old for very long without some terrible story happening at some point.
INSKEEP: Leon Fresco, thanks for coming by.
FRESCO: Thank you.
(SOUNDBITE OF ALAN ELLIS' "OUR SECRET")
GREENE: Steve Inskeep there talking to Leon Fresco, who was deputy assistant attorney general in the Obama administration. Transcript provided by NPR, Copyright NPR.