Thirty months after members of
Congress demanded an investigation into the family separations brought on by
then Attorney General Jeff Sessions’ “zero tolerance” policy, which stated that
every adult immigrant crossing the border who did not immediately make an
asylum request would be criminally prosecuted, including those in family units,
the DOJ Inspector General finally issued a report only days before Trump is to
leave office. This was likely due to political pressure from the anti-immigrant
fanatics in the White House, and not to incite anger from Trump who still clung
to his expectation that his election loss could be overturned and his inhuman
immigration policies would continue.
We all know that racism occupies a significant portion of Sessions’ Southern-fried white nationalist personality, and he has been instrumental in killing bi-partisan immigration reform in the past. We also know that Stephen Miller was a member of Sessions staff when he was still a U.S. senator, and Miller was his “mole” in the White House to further his anti-immigrant agenda. Sessions released a memo in April, 2017 in which he expected to see “huge” numbers of border crossers detained, but according to one DOJ staffer in the report, Sessions “wasn’t pleased with what he was hearing and seeing about our efforts…. He was big on seeing stats and metrics to understand what was occurring. He was very interested in making sure there was follow through…. The numbers didn’t indicate that [the Department had treated misdemeanor illegal entry offenses with any prioritization] at all.”
The “problem” was that U.S. Attorneys on the border regions did not have the resources to prosecute every single border crosser, and issued a “sliding scale” in who to prosecute, and tended to regard families with young children and those with no proven criminal history to be at the bottom of the scale, and this accounted for a large portion of the total. Out of this frustration with furthering his racist agenda that he characterized as a “crisis,” Session decreed the “zero tolerance” policy on April 6, 2018 as a simple declarative statement that all border crossers be detained and processed through the criminal justice system as quickly as possible. The IG report describes this as follows:
The new policy directed that Southwest border U.S. Attorneys, “to the extent practicable,” immediately adopt a zero tolerance policy for all illegal entry offenses referred by the U.S. Department of Homeland Security (DHS) to the U.S. Attorneys for criminal prosecution. The policy did not address how DHS immigration arrests involving family unit adults traveling with children should be handled. At the time, DHS was pursuing such family unit adult cases administratively rather than criminally, consistent with its longstanding policy related to concerns about separating children from parents…we determined that Sessions intended that the zero tolerance policy would be strictly implemented by the U.S. Attorneys, that it would result in DHS changing its longstanding policy and referring for criminal prosecution adult family unit members who entered the country illegally with children, and that the U.S. Attorneys’ discretion to decline such cases would be limited, despite the “to the extent practicable” language.
“Zero tolerance” flew in the face of the 1997 Supreme Court decision Flores v. Reno in regard to detained minors. The IG report noted that
Flores v. Reno set standards for federal immigration authorities’ treatment of detained undocumented minors, including a requirement that the government hold the minors in the least restrictive setting appropriate to their age and needs. The Flores settlement also required that the government hold children separately from unrelated adults. In 2008, the Trafficking Victims Protection Reauthorization Act (TVPRA) codified some of the Flores settlement’s restrictions into law and further stipulated that undocumented children who enter the United States without a parent or guardian, referred to as Unaccompanied Alien Children (UAC), must be transferred to the custody of HHS’s Office of Refugee Resettlement (ORR) within 72 hours of being apprehended.
Confusion and lack of resources led to Flores being disregarded in nearly all instances. Sessions “understood” that zero tolerance would result in family separations due to the 72-hour limitation. “Indeed, under the zero tolerance policy, from April to June 2018, more than 3,000 children were separated from their families when the family unit adult was referred to DOJ for prosecution, and issues regarding reuniting children with a parent remain as of the date of issuance of this report.” The number of children in just a short time residing in concentration camp conditions drew outrage from some members of Congress, who then demanded in July, 2018 that IG review the DOJ’s role in creating and implementing the zero tolerance policy.
The report noted that DOJ’s role in disregarding established law and practices by implementing “zero tolerance” led to many children being “reclassified” as “unaccompanied children” in order to put a smokescreen over the inhuman policy:
Because illegal reentry prosecutions generally take more than 72 hours, even when the defendant pleads guilty, when a child enters the country as part of a family unit and the parent is transferred to USMS custody for criminal prosecution, DHS designates the child as a UAC and places the child into the custody of ORR within 72 hours, absent “exceptional circumstances,” as required under the TVPRA. In practice, at most Border Patrol stations, staffing and space limitations related to children (who must be held separately from unrelated adults under Flores) often result in the transfer of children to ORR custody in significantly less time.
When asked if he knew that zero tolerance would lead to mass child separation, Deputy Attorney General Rod Rosenstein admitted that “I think the answer is yes. I think everybody understood that what it meant was we are going to prosecute without— everybody who committed a crime (even if technically “misdemeanor” entry) without regard [to] whether they brought a child.”
The failure to actually construct a thought-out plan how “zero tolerance” would work in practice led to “significantly underestimating its complexities and demonstrated a deficient understanding of the legal requirements related to the care and custody of Unaccompanied Alien Children (UAC). We further found that, even as significant problems were being raised about the implementation of the child separation policy by the Southwest border U.S. Attorneys, including concerns about DHS’s and HHS’s inability to reunite parents with their children, the zero tolerance policy remained unchanged until the issuance of a presidential Executive Order on June 20, 2018.” The draconian policy led to the failure to coordinate with the U.S. Marshals Service, the Office of Refugee Resettlement, DHS, HHS, or the U.S. Attorney’s Office on how to handle or provide needed additional resources.
How draconian?
We have now heard of us taking breast feeding defendant moms away from their infants, I did not believe this until I looked at the duty log and saw the fact we had accepted prosecution on moms with one and two year olds… Sessions and Rosenstein, among others, were notified of the proposal (by the Federal Public Defender’s office) which stated: For the last few weeks our office has routinely represented parents in misdemeanor court who have been separated from their children and who have been given no information about their whereabouts, their well-being, or any plans to reunite them. Most of these individuals are from Guatemala, El Salvador and Honduras and have no immigration or criminal history.
The children are as young as 3, 5, 7, 9 and 11 years old…. Our office has not been given any satisfactory answers from the Government as to the process of placing these children or any efforts to track and reunite them with their families. We continue to point out to the magistrate courts that our clients are enduring the punishment of separation from their children which is greater than any jail time they can have imposed upon them….
Some of the children are being separated from their parents on the day of their arrest 3 days prior to their court date whereas other parents are separated from their children on the morning they are brought to court. None of the parents are being told when the children will be returned to them. By the evening of May 31, the Federal Public Defender’s email had been forwarded to HHS and DHS headquarters; the White House; and to Rosenstein, who provided it to Sessions.
What was their response?
In an interview conducted after Rosenstein reviewed a draft of this report, we asked Rosenstein whether the Department considered informing DHS in late May or early June that DOJ would no longer accept referrals of family unit adults until DHS addressed identified breakdowns in the process related to the separation and reunification of children. Rosenstein told the OIG: “My view is that if the U.S. Attorneys had that level of discomfort they should have stopped prosecuting. And I would have respected that decision.” He added: “My view is they are the front lines. They’re handling the cases.” He continued, however, that Sessions “was always adamant that this program needs to continue, because [Sessions believed] there’s a crisis” on the border. Rosenstein noted that Sessions continued to publicly support the zero tolerance policy even after issues related to the separation and reunification of children surfaced.
Yet even after Trump’s executive order that supposedly ended family separation, it continued:
Specifically, some USAOs were uncertain whether they could exercise discretion to dismiss pending cases involving family unit adults in order to attempt to expedite reunification of a separated defendant-parent. For example, (U.S. Attorney John) Bash told the OIG that ODAG (Rosenstein’s office) provided contradictory and confusing guidance. He said that initially an ODAG official told him that he had clearance to dismiss pending cases; however, after doing so and releasing a public statement to that effect, he said that he was later told by ODAG, “You can’t dismiss them.” According to Bash: We were given some confusing guidance…that didn’t make sense, like, dismiss them if they’re going to be immediately removed…. But, until you get through the criminal justice process, there is no removal order. So, that would be [none of our cases]. It doesn’t make any sense…. Then we got further guidance that you can [make dismissal decisions] case by case, but it can’t just be the mere fact that it’s a family that you do it.
The failure to foresee and prepare led to shortages in “staffing, obtaining adequate bed space for criminal detainees, and providing sufficient medical care for criminal detainees,” as well as flooding immigration courts. Again, Rosenstein’s own failures were astounding: “Deputy Attorney General Rosenstein told us that he was unaware of the USMS’s budget shortfall projections or concerns about staffing shortages and bed space,” claiming that he was assured by USMS leadership that the USMS had no constraints in implementing the zero tolerance policy.” And yet the report noted that
A U.S. Marshal stated that one district facility became so overcrowded that at one point 300 to 400 inmates were triple bunked, which was concerning because “there’s the tendency for prisoner on prisoner assaults, prisoner on staff assaults.” According to USMS district and headquarters personnel, the combination of these challenges associated with the implementation of the zero tolerance policy had a significant impact on morale and working conditions for the USMS and contributed to district staff attrition. The acting Assistant Director for Prisoner Operations said that there was “fear and panic” regarding the initial forecasts at headquarters about the policy’s resource demands. In mid-May, an SDCA USMS supervisor wrote in an email to staff that, “Our manpower has been completely depleted…we are in ‘crisis mode,’ ‘critical mass’ ‘DEFCON 1’ or however you want to phrase it.”
Not mentioned there were the massive outbreaks of COVID-19 in these overcrowded facilities, and the failure to provide adequate PPE or hygiene against the virus—especially in ICE detention facilities. The lack of guidance also led to the USMS failing to coordinate with the ORR—which held many of the younger children—in order to “facilitate communication with their parents. “Facility staff reported that U.S. Marshals Service staff told them it did not have the same obligations as DHS to share information about parents with ORR. As of April 2019, ORR staff reported that the UAC Program continued to experience significant difficulties obtaining information about parents who were in U.S. Marshals Service custody.”
The report concluded that
Our review found that 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. While DOJ leadership told us that the decision to begin referring family unit adults for criminal prosecution was a DHS decision, the record indicates that DHS made this decision with the input and encouragement of the OAG and in response to the Department’s zero tolerance policy. Under the zero tolerance policy, after DHS began referring family unit adults to DOJ for criminal prosecution, over 3,000 children were separated from their families, and issues regarding reuniting children with parents remain as of the date of issuance of this report…
DOJ officials also did not attempt to inform themselves, prior to implementation of the zero tolerance policy, about the problems that arose…Further, the OAG issued and implemented the policy without an adequate understanding of the family separation process and the relevant legal requirements, particularly the 72-hour rule that limited detention of alien children in DHS custody. The Department’s failure to effectively prepare for the implementation of the zero tolerance policy also created resource, logistical, and related challenges for DOJ components, specifically the USMS and the Southwest border USAOs, as well as for the federal courts in the Southwest border districts.
This past October, the lawsuit of Ms. L. v. ICE revealed that the family separation policy still has its victims: 545 children separated because of the “zero tolerance” policy have been “lost” in the system and have not been reunited with their parents. Of particular interest here is not just Rod Rosenstein’s apparent failures of simple human decency, which probably comes as a surprise to some people, but the failure to mention the role of the Trump administration in supporting the policy—especially since Sessions’ mole in the White House, Stephen Miller, was no doubt Session’s principle aider and abettor in both formulating the policy and seeing it implemented.
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