Trump administration weighed targeting migrant families, speeding up deportation of children
A draft plan obtained by NBC News also shows officials wanted to
specifically target parents in migrant families for increased
prosecutions.
PHOTO: Migrant Family Border. A mother and her two
children walk across the Suchiate river bridge as Central American
migrants cross the border between Guatemala and Mexico, near Ciudad
Hidalgo, Chiapas State, Mexico, on Jan. 17, 2019.Marco Ugarte / AP
by Julia Ainsley
January 19, 2019
NBC News
January 19, 2019
NBC News
WASHINGTON — Trump administration officials weighed speeding up the
deportation of migrant children by denying them their legal right to
asylum hearings after separating them from their parents, according to
comments on a late 2017 draft of what became the administration's family
separation policy obtained by NBC News.
The draft also shows
officials wanted to specifically target parents in migrant families for
increased prosecutions, contradicting the administration's previous
statements. In June, Department of Homeland Security Secretary Kirstjen
Nielsen said the administration did "not have a policy of separating
families at the border" but was simply enforcing existing law.
The authors noted that the "increase in prosecutions would be reported
by the media and it would have a substantial deterrent effect."
Click here to read the draft and comments
The draft plan was provided to NBC News by the office of Sen. Jeff
Merkley, D.-Ore., which says it was leaked by a government
whistleblower.
Exclusive: Whistleblower exposes Trump's harsh policy on migrants. VIDEO: 06:58
In the draft memo, called "Policy Options to Respond to Border Surge of
Illegal Immigration" and dated Dec. 16, 2017, officials from the
Departments of Justice and Homeland Security lay out a blueprint of
options, some of which were later implemented and others that have not
yet been put into effect.
At the time, the number of undocumented
immigrants seeking to cross the southern border was near historic
monthly lows: 40,519 in December 2017, compared to 58,379 the same month
the year prior.
The document was circulated between high level
officials at DHS and the Justice Department, at least one of whom was
instrumental in writing the first iteration of the administration's
travel ban.
The plan, and the comments written in the margins,
provide a window into the policy discussion thinking at the time, how
far officials were willing to go to deter families seeking asylum and
what they may still be considering.
VIDEO: Thousands of migrant children separated from parents prior to 'zero tolerance' policy. Jan. 17, 2019
01:32
In one comment, the Justice Department official suggests that Customs
and Border Protection could see that children who have been separated
from their parents would be denied an asylum hearing before an
immigration judge, which is typically awarded to children who arrive at
the border alone.
Instead, the entire family would be given an
order of "expedited removal" and then separated, placing the child in
the care of HHS in U.S. Marshall's custody while both await deportation.
"If CBP issues an ER [expedited removal] for the entire family unit,
places the parents in the custody of the U.S. Marshal, and then places
the minors with HHS, it would seem that DHS could work with HHS to
actually repatriate [deport] the minors then," the official wrote.
"It would take coordination with the home countries, of course, but
that doesn't seem like too much of a cost to pay compared to the status
quo."
It is unclear from the official's comment whether the
government planned on reunifying children with their parents before they
were deported.
"It appears that they wanted to have it both ways
— to separate children from their parents but deny them the full
protections generally awarded to unaccompanied children," said Lee
Gelernt, a lawyer for the American Civil Liberties Union who led the
class action suit on behalf of migrant parents who had been separated
from their children.
A DHS official told NBC News on the
condition of anonymity because the department does not comment on
pre-decisional documents that the draft's authors' intent was to enable
agencies to reunify families after they were separated for prosecution.
But the draft and comments do not mention plans to reunify.
The Inspector General for Health and Human Services released a report
on Thursday that said "thousands" of children were separated under the
Trump administration during an influx in separations that began in the
summer of 2017, before the zero tolerance policy. Whether those children
were reunited with their parents is unknown, the report said.
Thousands more migrant kids separated from parents under Trump than previously reported
The Department of Homeland Security disputed the "thousands" reported
by the HHS Inspector General, claiming the inspector general did not
have evidence to back up the claim. According to DHS statistics, in
fiscal year 2017, the border patrol separated 1,065, 46 due to fraud and
1,109 due to medical or security concerns.
The December 2017
draft memo states that Customs and Border Protection is "currently
executing the [separation policy] on a limited basis in the El Paso
sector."
In a statement, DHS Spokeswoman Katie Waldman said, "The
Trump administration has made clear that all legal options are on the
table to enforce the rule of law, rein in mass unchecked illegal
immigration, and defend our borders. In December of 2017, we saw the
number of apprehensions increasing as a result of the Flores Settlement
Agreement, the Trafficking Victims Protection Act, and a lack of
physical barrier on the Southern Border."
"In part we were
predicting — and trying to prevent — the exact humanitarian and security
crisis we are confronted by now," said Waldman. "It would be
malpractice to not seriously examine every single avenue to gain
operational control of the border and ensure that those who are entering
our country have a legal right to be here."
The Justice Department referred questions to DHS.
Officials were aware of potential backlog of children
Officials were aware of potential backlog of children
When the administration began separating immigrant families under the
"zero tolerance" policy in May 2018, it held children in the custody of
HHS until they could be placed with a sponsor to await an asylum
hearing. Zero tolerance never placed children in expedited removal or
included systematically deporting them without their parents. Trump
reversed the policy in an executive order on June 20, 2018.
One
policy that was discussed but not implemented from the draft memo
included limiting protections for migrant children who were victims of
abuse or neglect.
The draft's authors suggested targeting
"potential abuses" in the Special Immigrant Juveniles program, which
provides green cards for immigrant children who have been abused,
abandoned or neglected by a parent. The Justice Department official
notes in a comment that children who have been abused by one parent are
often living with the other parent when they qualify and that DHS
Secretary Nielsen could refuse to award green cards in such cases.
VIDEO: Trump blames Democrats for migrant children's deaths Dec. 30, 2018 02:08
It is not clear whether the administration rejected the idea of
targeting children in the Special Immigrant Juveniles Program or whether
the idea is still under consideration.
Other policies discussed
in the draft, however, did materialize. For example, HHS adopted a
policy that would require anyone in a household who agreed to sponsor an
unaccompanied migrant child to undergo an extensive background check.
Publicly, DHS and HHS said that this was to ensure the safety of
children. But the draft shows administrators knew the potential for
creating a backlog of children in migrant detention, which later became
reality and led to the creation of the Tornillo tent city last year.
"There would be a short term impact on HHS where sponsors may not take
custody of their children in HHS facilities, requiring HHS to keep the
UACs [unaccompanied children] in custody longer," the draft said.
The official commenting in the margins of the draft noted, "I would
suggest referring sponsors for criminal prosecution under 1324 if
information indicates the sponsor facilitated the travel of the minor
into the United States."
PHOTO: The U.S.-Mexico border fence from Playas de Tijuana on Jan. 11, 2019.
The U.S.-Mexico border fence from Playas de Tijuana on Jan. 11, 2019.Guillermo Arias / AFP - Getty Images
The Justice Department has increased its criminal prosecutions of child
smugglers under the Trump administration, but it does not prosecute
every parent who has paid for their child to be brought to the United
States.
Also, the draft outlined the administration's plan to
keep asylum seekers in Mexico. Officials from the administration are
currently in negotiations with Mexico to finalize such a deal, forcing
all asylum seekers to wait in Mexico until a judge could adjudicate
their claims, which could take months or even years due to a backlog in
the courts.
"There are litigation risks associated with this
proposal, as it would implicate refugee treaties and international law,"
the draft said. In public testimony, Nielsen has told Congress that the
policy is legal.
The officials also weighed "mandatory
detention" of asylum seekers "for the duration of the adjudication of
their asylum claims."
Releasing immigrants on bond while they
wait months or years to see an asylum judge is an issue that has plagued
both the Obama and Trump administrations. However, under the 1997
Flores court agreement, ICE is prohibited from holding children in
detention for longer than 20 days. In September 2018, the administration
announced that it was seeking to overturn the Flores agreement, but the
policy has yet to go into effect. ICE is also limited in space to hold
all immigrants awaiting asylum hearings.
ABOUT THE AUTHOR:
Julia Ainsley is a national security reporter for NBC News.
