Homeland Security Secretary Kirstjen Nielsen has resorted to a rhetorical sleight of hand in recent days to defend the Trump administration’s policy of separating families that illegally cross the border.
“We do not have a policy of separating families at the border. Period,” Nielsen wrote in a tweet on June 17.
A day later, she doubled down on that statement during a press briefing when she said that “this administration did not create a policy of separating families at the border.” At the same time, however, she acknowledged that there has been a change in policy that effectively leads to such separations.
The fact is, Attorney General Jeff Sessions publicly announced a “zero tolerance policy” on illegal immigration in April, and stated on May 7 that DHS “is now referring 100 percent of illegal Southwest Border crossings to the Department of Justice for prosecution.” Sessions may not say that family separation is the intent, but that’s exactly what happens when immigrants are referred for criminal prosecution. (Under federal law, illegal entry is a misdemeanor, and illegal reentry is a felony.)
That results in children being separated from their parents when the adults are sent to federal court and detained under the custody of the U.S. Marshals Service. The children cannot be held in detention facilities for adults, so they are referred to the Department of Health and Human Services’ Office of Refugee Resettlement. That agency assumes responsibility for “unaccompanied alien children” until they can be placed with other family members in the country or in foster care.
DHS told us the “zero-tolerance” policy went into effect on May 5, and between May 5 and June 9, there had been 2,342 children separated from their parents.
Contrary to what Nielsen claimed, other administration officials have acknowledged a change in policy to serve as a deterrent to illegal immigration.
Early last year, White House Chief of Staff John Kelly, Nielsen’s predecessor as Homeland Security secretary, indicated that DHS was considering splitting up parents and children as a strategy to deter other families from illegally immigrating to the U.S. He suggested that was still the motivation last month when he told NPR that family separation “could be a tough deterrent” for others considering trying to cross the border illegally.
Stephen Miller, a senior White House policy adviser, told the New York Times this month: “It was a simple decision by the administration to have a zero tolerance policy for illegal entry, period. The message is that no one is exempt from immigration law.”
And in a speech on June 18, Sessions, the head of the Justice Department, said that “we do have a policy of prosecuting adults who flout our laws to come here illegally instead of waiting their turn or claiming asylum at any port of entry. He added, “We cannot and will not encourage people to bring children by giving them blanket immunity from our laws.”
Even Nielsen has admitted that there has been a shift from the approach taken by previous administrations. She acknowledged that during the same press briefing where she denied the existence of a policy separating families.
Nielsen, June 18: What has changed is that we no longer exempt entire classes of people who break the law. Everyone is subject to prosecution. When DHS refers a case against a parent or legal guardian for criminal prosecution, the parent or legal guardian will be placed into the U.S. Marshals Service custody for pretrial determination, pursuant to an order by a federal judge. And any accompanied child will be transferred to the Department of Health and Human Services and will be reclassified as an unaccompanied alien child. That is in accordance with the TVPRA — a law that was passed by Congress — and a following court order, neither which are actions the Trump administration has taken.
In her remarks, Nielsen insisted that separations at the border are occurring as the result of either legal rulings or a decade-old law passed by Congress.
But there is no law that requires family separation at the Southwest border, as we wrote last month when President Donald Trump said “we have to break up families” because of “bad laws that the Democrats gave us.”
Immigration policy experts told us that the Trump administration’s decision to bring criminal charges against the parents — rather than follow the civil immigration removal process — is what has caused the separations.
“It is the government’s choice whether to criminally prosecute someone for illegal entry or reentry,” said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center.
“Historically, most immigrants were not prosecuted, even when the law allowed for it, they were simply removed in civil proceedings,” she said. “The significant uptick in criminal prosecution began under President George W. Bush, and continued through the early Obama administration.”
DHS argues that it is unable to detain families together for as long as necessary because of court rulings pertaining to a 1997 legal settlement, as well as a 2008 antitrafficking law affecting minors who are apprehended at the border without a parent present.
- Under the 1997 Flores settlement, DHS could detain unaccompanied children captured at the border for only 20 days before releasing them to foster families, shelters or sponsors, pending resolution of their immigration cases. The settlement was later expanded through other court rulings to include both unaccompanied and accompanied children.
- The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 requires unaccompanied minors from countries other than Mexico and Canada to be placed in the care of the Office of Refugee Resettlement, or relatives in the U.S., while they go through removal proceedings. The bipartisan bill was approved by unanimous consent and signed by President George W. Bush, a Republican.
The 2016 ruling confirming that the Flores settlement applied to unaccompanied and accompanied minors limited how long children could be detained in family detention centers, which were used during the Bush administration and then expanded under Obama in 2014.
But neither the legal settlement or the 2008 law requires the Trump administration to “break up families.”
They require the government to release children from custody after a certain period of detainment, said Sarah Pierce, a policy analyst at the Migration Policy Institute. But they don’t require that parents continue to be held in immigration detention.
“The government absolutely has the option to release the parents,” as well, Pierce said. That’s as long as they aren’t a flight or safety risk, she added.
In fact, in April, the Washington Post reported that during its first 15 months, the Trump administration released nearly 100,000 people who had been caught entering the U.S. illegally. That included more than 37,500 unaccompanied minors and 61,000 family members, the newspaper said.
But during the press briefing this week, Nielsen said that it’s Congress that needs to act to fix the current situation.
“Congress and the courts created this problem, and Congress alone can fix it,” she said. “Until then, we will enforce every law we have on the books to defend the sovereignty and security of the United States.”
Congress could pass a bill to allow DHS to detain families together for an extended period of time during the removal process, Peter Margulies, professor of law at Roger Williams University, told us in an interview.
Senate Republicans are reportedly working on legislation to do that.
Still, there is nothing that requires the administration to continue prosecuting parents, either, Margulies said.
And a new law wouldn’t necessarily stop the separation of families.
“If the administration continues to move toward prosecuting all illegal entry and reentry violations by parents who enter the United States with their children and jailing the parents before trial, rather than using one of these alternatives to detention, they will continue to separate the parents from the children,” David FitzGerald, co-director of the Center for Comparative Immigration Studies, wrote in an email to us. “If the parents are then sentenced to a jail term, that will cause parental separation as well.”
Brown, of the Bipartisan Policy Center, made a similar point.
“As long as prosecutions are happening it will require family separations. And that was a question that Sec Nielsen did not answer” at the June 18 press briefing, Brown wrote in an email. “That is, if Congress changes those laws and closes the loopholes, the administration has not said it will end its zero tolerance policy.”
We asked DHS if it would end its policy of referring all illegal border crossing cases for prosecution, but we did not receive a response. Trump said on June 20 that he would sign an executive order later that day to “keep families together.”
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