Former Attorney General Jeff Sessions knew that migrant families at the border would be torn apart as a result of implementing the “zero tolerance” policy but pushed the plan despite pleas from senior government officials, according to a new inspector general report.
A Justice Department audit released Thursday concluded that Sessions and then-Deputy Attorney General Rod Rosenstein advanced a plan to prosecute all adults who illegally crossed the border, 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 Office of Refugee Resettlement, would be able to accommodate the influx of people.
“The department’s single-minded focus on increasing prosecutions came at the expense of careful and appropriate consideration of the impact that prosecution of family unit adults and family separations would have on children traveling with them and the government’s ability to later reunite the children with their parents,” the inspector general’s report states.
The administration rolled out a pilot program in 2017, which Sessions concluded, “worked,” despite pushback from federal prosecutors, immigration judges, and officials who said they could not hear adults’ cases within the 20 days that they were legally capped at holding children. Sessions pushed the policy in internal discussions in mid-2017, as the number of people encountered at the U.S.-Mexico border was beginning to rise. He argued that an “illegal alien should not get a free pass just because he or she crosses the border illegally with a child.”
Sessions, in April 2018, announced that the Department of Homeland Security would be prosecuting all adults who illegally crossed the southern border in an attempt to deter illegal migration among the growing demographic of Central American families. Because children cannot be held in jail, adults with children had not been prosecuted, but the influx of families prompted the government to take harsh action. Separated children were then transferred to the Health and Human Services Office of Refugee Resettlement and placed with sponsors in the United States. The initiative was stopped in June 2018 following outcry from Democrats and Republicans.
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 Wednesday.
The American Civil Liberties Union successfully sued the administration in mid-2018 to reunite several thousand families who were broken up.
“The barbaric family separation practice was immoral and illegal,” Lee Gelernt, the ACLU’s lead attorney in the lawsuit, said in a statement Thursday. “At a minimum, Justice Department lawyers should have known the latter. This new report shows just how far the Trump administration was willing to go to destroy these families.”
House Homeland Security Chairman Bennie Thompson said the new report confirms from the government’s perspective what has been known: The Trump administration “intended to separate” families at the border and that it was not collateral damage.
“They knew the consequences and did it anyway,” said Thompson, a Mississippi Democrat. “Administration leaders did not coordinate the policy among agencies or plan for basic measures to help the children traumatized by this policy.”
The White House blocked a Justice Department deal in 2019 to cover the costs of mental health services for thousands of immigrant children who were separated by federal agents from their parents at the U.S.-Mexico border. White House senior adviser Stephen Miller advised the Office of White House Counsel against settling a federal lawsuit over government-funded counseling and other services.
President-elect Joe Biden said last week that his Justice Department will conduct a thorough investigation into the implementation of the policy.
In 2019, former California Attorney General Xavier Becerra led a multistate lawsuit that alleged children were being held in “inhumane” conditions for weeks at Border Patrol facilities, a violation of detention conditions as outlined in the 1997 Flores settlement agreement, a court agreement that outlined how the government can detain illegal immigrants, including children. Biden will nominate Becerra as HHS secretary, where he could end contracts with private detention facilities that hold at-risk children. Instead, he could force HHS to work more closely with nonprofit organizations to care for children who arrived at the border without a family member and for whom the government has not found a relative in the U.S.
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 the DHS agency Customs and Border Protection. He or she is then transferred from a regional Border Patrol holding station to ICE for longer detention, 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, they will be turned over to ORR, the federal agency that cares for unaccompanied children.
