Secretary Kirstjen Nielsen previously denied existence of policy

Open the Government and the Project On Government Oversight have obtained documents through a Freedom of Information Act (FOIA) requestthat provides new insights into internal decision-making behind the separation of thousands of parents from their children at the border earlier this year.

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.”

The last page of the memo contains a signature approving Option 3, but the signature—almost certainly Nielsen’s, given that the memo is addressed to her—was blacked out by FOIA officers on privacy grounds. FOIA officials also appear to have redacted the date of the signature indicating approval.

Open the Government and the Project On Government Oversight intend to appeal the redaction of the memo. The Secretary of Homeland Security is a high-level public official; using privacy exemptions to hide her role in major policy decisions is unacceptable.

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 full memo recommends prosecuting and separating parents because:

…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.

The memo references a pilot of the zero tolerance/family separation policies in the Border Patrol’s El Paso Sector, which the Project On Government Oversight has previously investigated. The memo does not discuss any plan for reuniting separated families, or the harmful effects of separation on children, nor does it reflect any input from the government agencies who would be responsible for caring for the separated children.

The records released in response to the FOIA 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.

At least 182 children remain separated from their parents months after a court-imposed deadline requiring the administration to reunite all of the separated families, according to a court filing dated September 20. The government has not taken all necessary measures to reunify families, according to immigration rights lawyers and non-profit groups.

Katherine Hawkins, an investigator at POGO, said of the DHS documents, “This is a small part of what must be an extensive paper trail on family separation, which needs to be made public so that the officials responsible can be held to account.”

“The newly disclosed documents provide a window into the internal policymaking behind the crisis that continues to haunt thousands of children,” said Lisa Rosenberg, Executive Director of Open the Government. “The administration needs to make available records that are still secret in order to fully understand why decisions were made to separate children from their families, and who made them.”

Read the newly released documents:

Part 1; Part 2; Part 3
CBP response letter

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I’ve raised this point several times before. There is obviously a “paper trail” here, and some agency lawyers knew the truth about the policy that Nielsen was denying publicly and in court.

So, where is the “due diligence” from the DOJ lawyers representing Nielsen, Sessions, the DHS, and DOJ in court? Did the DHS attorneys who knew what the true policy was call the DOJ attorneys and tell them to retract their court denials? Did the DOJ lawyers check with their DHS/ICE colleagues before telling a court that a policy they conceded was unconstitutional wasn’t in effect?

Who is lying here and what has happened to the code of ethics (formerly?) applicable to Government lawyers? And why aren’t more Federal Judges “pushing back” on DOJ attorneys for their sometimes obviously untrue and other times thinly reasoned and meagerly supported positions in court?

While Trump is the undisputed “King of Liars,” Sessions and Nielsen also have well-established reputations for intentional lack of candor and twisting and misrepresenting facts, particularly on immigration policies. So why isn’t there some higher duty on Government lawyers to do “due diligence” when dealing with these known liars?

Thanks to the fabulous Dan Kowalski over at LexisNexis for passing this item along.

PWS

09-26-18