The Biden administration rescinded a Trump-era policy that had forced migrant families to be separated at the border so that the adults could be prosecuted for unlawful entry.
The Justice Department’s top official issued a memo Tuesday that walked back the “zero tolerance” policy, which called for federal law enforcement personnel on the border to refer for prosecution all adults, including those who arrived with children, who illegally crossed the border. The policy only applied to first-time offenders.
“Consistent with this longstanding principle of making individualized assessments in criminal cases, I am rescinding — effective immediately — the policy directive,” acting Attorney General Monty Wilkinson wrote in a memo shared with the Washington Examiner.
A DOJ spokesperson said in an email that the policy “was inconsistent with the department’s longstanding principle that we exercise judgment and make individualized assessments in criminal cases,” adding that the move “restores to prosecutors their traditional discretion to make charging decisions based on a careful review of the particular facts and circumstances of individual immigration cases.”
The DOJ’s move was largely symbolic as the policy has not been enforced since the summer of 2018, but it represents the new administration doing away with its predecessor’s tough tone toward immigrants and vows to consider prosecutions on a case-by-case basis. The policy has technically remained on the books even though it was not being followed.
In an effort to deter illegal migration occurring between the Mexican border and Texas, New Mexico, Arizona, and California, the Trump administration in early 2017 rolled out the zero tolerance policy in several regions of the 2,000-mile-long boundary. In April 2018, former President Donald Trump’s first attorney general, Jeff Sessions, announced that the Department of Homeland Security would be prosecuting all adults who illegally crossed the southern border in an attempt to deter more people from coming, in light of the increased migration of Central Americans. Because children cannot be held in jail, adults with children had not been prosecuted until then, but the influx of families prompted the government to take the new harsh action. Separated children were to be transferred to the Health and Human Services Office of Refugee Resettlement, then placed with sponsors in the United States. The initiative was stopped in June 2018 following outcry from Democrats and Republicans.
As of January, an estimated 5,400 families who were separated at the border and more than 600 children have yet to be reunited more than two years later, according to a court filing submitted earlier this month.
A Justice Department audit released this month concluded that Sessions and then-Deputy Attorney General Rod Rosenstein advanced the plan knowing that it would prompt thousands of children to be temporarily orphaned. The DOJ leaders wrongly assumed the courts and federal agencies, such as Immigration and Customs Enforcement and the HHS, would be able to accommodate and track each member of the divided families.
President Biden said last week that his Justice Department will conduct a thorough investigation into the implementation of the policy.
Any person arrested after illegally crossing the U.S. border from Mexico or Canada is taken into custody by Border Patrol, which is part of Customs and Border Protection, a DHS agency. He or she is then transferred from a regional Border Patrol holding station to ICE for longer detention, or immediately removed from the country by CBP, or in the case of children who arrive without parents or are separated from a parent by the government, turned over to ORR, the federal agency that cares for unaccompanied children.
DHS and CBP did not immediately respond to requests for comment.
