Document Contradicts Administration’s Denials about Family Separation

(Photo: U.S. Customs and Border Protection)

A Department of Homeland Security policy memo reveals that top officials discussed and approved a policy to separate immigrant families in order to prosecute parents for border crossing, contradicting Homeland Security Secretary Kirstjen Nielsen’s claims denying a policy of family separation. In addition, the memo undercuts other claims by Nielsen about the purposes of the policy, including that it was not intended to be a deterrent.

Homeland Security officials have confirmed that Nielsen signed the memo on the policy, which Open the Government and the Project On Government Oversight obtained in redacted form, along with other documents, through the Freedom of Information Act (FOIA). As we reported earlier this week:

The biggest revelation in the documents is a memo dated April 23, in which top Department of Homeland Security (DHS) officials urged criminal prosecution of parents crossing the border with children—the policy that led to the crisis that continues today. The memo, first reported on by the Washington Post on April 26, but never previously published, provides evidence that Secretary of Homeland Security Kirstjen Nielsen signed off on a policy of family separation despite her repeated claims denying that there was such a policy. The Post appears to have obtained a copy of the memo prior to its signature.

The memo states that DHS could “permissibly direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted.” It outlines three options for implementing “zero tolerance,” the policy of increased prosecution of immigration violations. Of these, it recommends “Option 3,” referring for prosecution all adults crossing the border without authorization, “including those presenting with a family unit,” as the “most effective.”

Open the Government and the Project On Government Oversight did obtain an unsigned, unredacted copy of the same memo, but are unable to post the full document for reasons of source protection.

The memo acknowledges that prosecuting and separating parents would present “increased legal risk,” based on an attached legal analysis that has never been made public. It nevertheless recommends the policy because:

Given challenges presented by Flores decisions [the rulings limiting how long Homeland Security can detain families], backlogs in overall protection systems and immigration court processes, and other considerations, it is very difficult to complete immigration proceedings and remove adults who are present as part of FMUAs [family units] at the border. In fact, only 10 percent of non-Mexican FMUA apprehended during the Fiscal Year (FY) 2014 surge have been repatriated in the nearly four years since their illegal crossing. Of these options, prosecuting all amenable adults will increase the consequences for illegally entering the United States by enforcing existing law, protect children being smuggled by adults through transnational criminal organizations, and have the greatest impact on current flows.

Homeland Security officials, including Nielsen, have asserted that children were only being separated because it was necessary to do so in order to criminally prosecute their parents for unlawful entry. Nielsen called the idea of family separations being used as a deterrent “offensive,” and claimed that parents were given the option of being reunited with their children before deportation. She said in July that “[a]ll of these adults who left without their kids left based on a decision to leave their children.”

There was already a great deal of evidence contradicting both of those claims, but the full memo adds even more. Nielsen’s subordinates cited an “impact on current flows” as one of the benefits of prosecuting parents, and claimed that prosecuting parents in El Paso had successfully decreased the number of illegal border crossings. They also noted that “it is very difficult to complete immigration proceedings and remove adults who are present as part of family units,” implying that separations would have the benefit of enabling faster deportations. Nielsen’s signature indicates that she found these rationales persuasive.

We noted in our prior reporting that the memo does not discuss plans for reuniting separated families, acknowledge the harmful effects of separation on children, or indicate that the government agencies responsible for caring for separated children weighed in. By April, Department of Health and Human Services shelters for unaccompanied minors had been receiving separated children for months without any notice from the Justice Department or Homeland Security.

Our FOIA request also yielded other documents about implementation of policies related to the ongoing family separation crisis:

The records released in response to the FOIA [1, 2, 3] also include internal DHS directives sent in June and July following court orders to stop separating families, and internal emails discussing failed efforts to bring families back together. One troubling email explains that in July, DHS leadership instructed employees to deport families as quickly as possible, as a way of clearing out space for new families. The email raises questions on whether those deportations violated due-process protections.

Many more documents relevant to family separation have never been released. They need to be—starting with the legal analysis referenced in the April 23 memo.