Dismantling Protections for Immigrant Kids


Amid mounting outrage over the systematic separation of thousands of migrant children from their parents, Kirstjen Nielsen, the secretary of the Department of Homeland Security, sent a defensive and politically opinionated email Friday night to her workforce. The email reflects the latest data point in a mounting pile of evidence indicating that the Trump administration hopes to channel anger over its decision to separate families into a radical restructuring of the systems in place to protect immigrant children, all with an eye toward prolonged and mass detention.

Those aspirations continue to run up against realities on the ground, however, leaving the future of the administration’s chaotic enforcement strategy decidedly unclear.

Appearing hours after protesters gathered outside Nielsen’s Virginia townhouse, playing the now infamous audio of migrant children crying for help in DHS custody, the secretary’s message laid out in clear language the Trump administration’s current legislative priorities on issues related to the separation and detention of families on the southwest border. At the center of those priorities: an expansion of family detention — done in the name of keeping families together — and a further tightening of the asylum system.

While the secretary highlighted the same priorities in a contentious press conference four days earlier, her email on Friday was sent after President Donald Trump signed an executive order addressing family separations, and left open the question of whether the Trump administration might resume those separations if it does not get its way in court.

A Confrontation With Reality

Nielsen’s message, obtained by The Intercept, described the border as being in a state of “crisis,” and said the recent executive order on border enforcement from Trump could only go so far in addressing the issue. The secretary pointed to three legislative priorities the administration is seizing on in response, including undoing a law designed to protect child victims of human trafficking, reforming the asylum system to prevent its “abuse,” and overturning a settlement that prohibits the prolonged detention of immigrant kids.

Nielsen skirted the question on the minds of millions of Americans: How does the government plan to reunite the thousands of children, including toddlers and babies, forcibly separated from their parents by DHS? Instead, she focused on changing laws that prevent the government from locking children up indefinitely and systems designed to respect the rights of people fleeing violence and persecution. The secretary appeared to leave open the possibility that family separations, currently paused by the executive order, could resume depending on the success of a recent motion in a critical court case.

“As many of you are aware, we are in the midst of an illegal immigration crisis on our southern border that has been fueled by a decades-long failure to fully enforce our nation’s immigration laws,” Nielsen told her staff in Friday’s email. “While DHS — and the full administration — has worked to ensure no one is exempt from the consequences of violating our laws, there has been significant misinformation about our efforts.”

The secretary explained that Trump’s executive order, signed last Wednesday, “will permit alien families who have crossed our border illegally to remain together where appropriate and consistent with law and available resources.” Nielsen then noted that the order also called on Attorney General Jeff Sessions to appeal a federal consent decree known as the Flores settlement, which provides a series of protections to migrant children in government custody — the Justice Department filed the motion last week. In Nielsen’s words, the Flores settlement “prevents us from detaining minors with parents.” She added, “This is the court ruling that has limited the department’s ability to keep families together while adults are held accountable for illegally crossing our borders.”

At the moment, the state of family separations is effectively in limbo, with future practices turning, in part, on whether Judge Dolly Gee, in California’s 9th Circuit, grants or denies the government’s motion to amend the Flores settlement to allow for prolonged family detention. Under the current settlement, the government is prohibited from detaining children — and parents they are arrested with, if that’s the case — for more than 20 days. The Trump administration is seeking to change that, arguing that it should be able to detain kids and their parents for as long it takes to complete their immigration cases, which can be weeks, months, or even years, particularly in complex asylum cases.

“If Judge Gee denies the motion to amend the Flores order, then after families have been in detention for three weeks, push will come to shove,” Margo Schlanger, a law professor at the University of Michigan and former DHS civil rights chief, said in an email to The Intercept. “This hints that the answer will be renewed separation.”

DHS did not respond to a request for comment on the question of whether family separations would resume should the government fail in its efforts to amend the Flores settlement. In a flurry of news Monday, the head of U.S. Customs and Border Protection, which oversees the Border Patrol, said he had “temporarily stopped referring for criminal prosecution adults who cross the border illegally with children,” the Associated Press reported. The Justice Department, meanwhile, continues to say that its “zero tolerance” doctrine is still in place.

John Sandweg, a former acting director at U.S. Immigration and Customs Enforcement under the Obama administration, said Nielsen’s email illustrated the intertwined problems at the heart of the administration’s evolving approach to the border: The administration does not want to release parents and children in its custody; Flores blocks the government from detaining them for prolonged periods of time; and even if it did not, the government lacks the facilities to do so on the scale the administration envisions. “The executive order and the realities are mutually exclusive from one another,” Sandweg told The Intercept. “You can’t detain the parents and reunite the kids, simply because not only does Flores limit it to 20 days, but you just don’t have the facilities either, or the money to pay for the facilities.”

“That’s what it boils down to,” Sandweg added. “If they’re going to keep families together, the practical realities are, that requires releasing the parents.”

In her email, Nielsen stressed that there were other limitations to Trump’s executive order, noting that while it “will allow illegal alien families to remain together for a certain period without compromising border security, it will not solve the problem permanently.” In a passage that ignored the fact that family separation was a policy choice of the administration, Nielsen wrote, “Congress must change the law to provide a lasting solution to family separation. As DHS employees know all too well, our laws continue to be exploited by sex traffickers and human smugglers who take advantage of children to gain illegal entry into our country.”

Nielsen then went on to identify “three major loopholes” in need of congressional intervention, each one reflecting long-standing goals of the administration’s hard-right anti-immigration hawks and their partners in the think tank world.

First up was the 2008 Trafficking Victims Protection Reauthorization Act, or TVPRA. “This well-intentioned law results in unintentional consequences. Instead of protecting children from dangerous traffickers, this law encourages families to put their children in the hands of smugglers on a dangerous trek northward,” Nielsen wrote, though she provided no further explanation for her claim. Second, Nielsen targeted the asylum system. “Currently our asylum system fails to assist those who legitimately need it and is overrun with fraud,” the secretary asserted. Again, she provided no elaboration, despite the fact that her serious allegation — that people who need asylum are not getting it — would be read by her employees, the very same people responsible for that system. Finally, Nielsen wrote, “we need to amend the Flores Settlement Agreement which would allow family detention during the removal process — and we need congress to fund our ability to hold families together through the immigration process.”

If there were any lingering doubt about what the Trump administration wants to do about family separation, Nielsen’s email appears to settle the matter. As many veteran observers of immigration politics have argued for weeks, the government seems clearly set on using the family separation scandal as a means to radically expand and institutionalize prolonged family detention.

A Manufactured Crisis

From top to bottom, Nielsen’s email is laden with Trumpian immigration politics — that is to stay, it is full of claims that are half true or simply false.

The premise that the border is in a state of “crisis” is one example. In the wake of Trump’s election, border apprehensions, the metric the government uses to gauge migration levels, dropped sharply. They have since returned to levels seen over the last several years, but those levels, too, reflect an overall 18-year downward trend in border apprehensions. To the extent that there is a crisis on the border, it is a humanitarian one, stemming from a multi-decade enforcement strategy that has driven migration flows into the desert, leading to a minimum of 6,000 migrant deaths over the last decade and a half and, more recently, a prosecutorial policy of “zero tolerance” that resulted in thousands of families being torn apart with no plan in place for their reunification.

Targeting the TVPRA and Flores have been long-standing goals of the Trump administration’s top immigration enforcement officials. At a border security conference in January, for example, Thomas Homan, the acting director of ICE, highlighted both during a fiery keynote luncheon speech in which he railed against “what it takes to get asylum in this country.”

“We need to talk about the TVPRA, why children are coming, why we can’t remove children. We need to talk about why the 9th Circuit says we can only hold family units for less than 20 days,” Homan said at the time. “I tell ya, if we can only hold a family for less than 20 days — they get three squares a day, they’re getting their vaccinations, they’re getting all taken care of — only to go to their final destination and not show up for immigration court, you’re never going to fix that problem.”

So-called loopholes in the asylum system have also been a favorite topic of the Trump administration and its allies, particularly among those affiliated with the Center for Immigration Studies, a think tank that is closely allied with the Trump government and is listed as a hate group by the Southern Poverty Law Center. A “vast majority of these families [from Central America] don’t show up in immigration court and they get an order in absentia, because they — not only did they enter the country illegally and go into hiding, they won’t appear in front of an immigration judge,” Homan said at a recent CIS event.

The purported unwillingness of family detainees — and asylum-seekers in particular — to show up at immigration hearings was undercut by an article published in the California Law Review over the weekend. Based on 15 years worth of federal immigration court records, the article was described as “the first national study of the practice of detaining families as they pursue relief in United States immigration court.”

“We find that 86% of family detainees attended all their court hearings during our study period. In other words, since 2001, only 14% of the family detainees released from detention have been ordered removed in absentia,” the article said. “Families who applied for asylum were especially likely to attend future court hearings, with 96% attending all their hearings,” it went on to say, adding, “asylum applicants with lawyers had an even higher appearance rate: 97% attended all their hearings during our study period.”

In the absence of a decision on Flores and amid mounting lawsuits that include the possibility of a nationwide injunction against the ongoing separation of thousands of parents from their children, the weeks ahead look uncertain.

On Saturday night, a little more than 24 hours after Nielsen sent her email, DHS released a “fact sheet” on family separation, which raid more questions than it answered. The government’s approach at the moment appears focused on reuniting certain families for the purpose of deportation. Even that is more difficult than it sounds, said Sandweg, the former ICE acting director, pointing out that once children enter the foster care system, their cases become ever more complex, including involvement from foster care authorities and state juvenile courts.

It is not as if ICE can simply call up a foster care facility and tell the facility to quickly ship a baby down to the border for a deportation, Sandweg explained. “It’s not that simple,” he said. “Often times the judge is going to want the parent to appear and say, ‘Look, I have my own obligation as a state court judge here to make sure that the decisions we make are in the best interest of the child. I need to see the parents. I need to talk to the parents. I need to understand where the child is going to be living.’ Those are legitimate questions.” Rather than undertaking all of that work, Sandweg said, ICE might be inclined to tell a parent, “‘Well, we’re not going to be able to reunite you right now but you can leave now and maybe get your son back. You just need to agree to leave without your kid.’”

All of this leaves asylum-seekers, whose cases take longer to process, in a particularly precarious position in which they may be forced to abandon a potentially viable case on the hopes that they will be reunited with their child post-deportation, in a nation that they fled for a reason. Sandweg stressed that Nielsen’s email, with its focus on asylum writ large and multiple critical legal cases, reflects the Trump administration’s broader attack on the immigration system.

“It’s not just Flores,” he said. “What they’re trying to do is upset the entire legal framework which governs the manner in which kids can be detained or not detained.”

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