YUMA, Arizona—The political and media firestorm that has erupted over the separation of parents and children at the border was called “irresponsible and unproductive” by Homeland Security Secretary Kirstjen Nielsen on June 17.
Nielsen took to Twitter to say the department does not have a blanket policy of separating families at the border, but rather is enforcing existing policy.
“For those seeking asylum at ports of entry, we have continued the policy from previous administrations and will only separate if the child is in danger, [or] there is no custodial relationship between ‘family’ members, or if the adult has broken a law,” Nielsen wrote in a tweet.
Both the Obama and Bush administrations separated families at the border for the same reasons.
“What has changed is that we no longer exempt entire classes of people who break the law,” Nielsen said at a White House press briefing on June 18.
At issue is the “zero tolerance” policy that Attorney General Jeff Sessions announced in April in a push to decrease and deter illegal immigration by prosecuting all adults who cross the border illegally, under 8 U.S.C. Section 1325(a).
More than 50,000 illegal immigrants have been apprehended at the southwest border in each of the last three months.
Most are family units from Central America who are seeking asylum; however, they can simply avoid prosecution and separation if they cross the border legally, at a port of entry.
Prosecuting illegal border crossers means parents and children must be separated while the parent is held by the U.S. Marshals Service pending charges. Any accompanying child will be transferred to the Department of Health and Human Services and will be reclassified as an unaccompanied minor, in accordance with the Trafficking Victims Protection Reauthorization Act (TVPRA).
Numbers from the Department of Homeland Security show that for the six weeks between April 19 through May 31, Border Patrol separated 1,995 children from 1,940 adults.
In response to questions by reporters about the separation being child abuse, Nielsen said most of the minors currently in detention crossed the border illegally as unaccompanied minors.
“The vast, vast majority of children who are in the care of Health and Human Services right now—10,000 of the 12,000—were sent here alone by their parents. That’s when they were separated. So somehow we’ve conflated everything, but there’s two separate issues,” she said.
“Ten thousand of those currently in custody were sent by their parents, with strangers, to undertake a completely dangerous and deadly travel, alone. We now care for them.”
Sessions told the National Sheriffs’ Association in Florida on June 18 that the administration doesn’t want to separate children from their parents.
“We do not want adults to bring children into this country unlawfully, placing them at risk,” Sessions said. “But we do have a policy of prosecuting adults who flout our laws to come here illegally instead of waiting their turn or claiming asylum at any port of entry. We cannot and will not encourage people to bring children by giving them blanket immunity from our laws.”
Since this time last year, the number of unaccompanied minors crossing illegally has increased by 325 percent, while family units have jumped by 425 percent, according to Nielsen.
“Since 2013, the United States has admitted more than half a million illegal immigrant minors and family units from Central America—most of whom today are at large in the United States,” she said.
The same policy of prosecuting all adults who cross illegally was part of a 2005 push by former President George W. Bush to decrease illegal immigration, named “Operation Streamline.”
Sheriff Leon Wilmot from Yuma County, Arizona, said, at the time, the combination of a new border fence in his sector and the zero tolerance prosecution policy dramatically reduced illegal crossings and related crimes.
“We were the worst in the nation in 2005, 2006,” Wilmot said on May 25.
In 2005, mass incursions across the border in the Yuma Sector often left agents outnumbered 50 to 1, and apprehensions steadily increased to more than 138,000.
At the same time Operation Streamline was enacted, Yuma tripled manpower, added fencing and vehicle barriers and mobile surveillance. By 2009, Yuma apprehensions fell to about 7,000.
“We were able to reduce it by 91 percent as far as ancillary crimes that we are dealing with—the deaths in the desert, the rapes, the robberies, the homicides, the burglaries, the thefts,” Wilmot said.
He attributes the decrease to two things.
“The fence is part one, but part two was 100 percent prosecution—if you did try to cross and you got caught you were held accountable. There were consequences,” he said. “So the combination, the fence slowed them down but they are going to find a way over it, under it, through it, whatever. But the real issue was when you got caught you went to jail, it stopped.”
Wilmot said the Obama administration stopped prosecuting all illegal border crossers and by fiscal year 2016, the number of apprehensions in Yuma climbed back up to more than 14,000.
“When they did away with that [zero tolerance], they are coming again, and the numbers that are coming through Yuma are way back up,” he said.
“It’s not where they were but it is disturbing to see the trend increasing again. The tactics changed again, too. When you take away the prosecution, rather than trying to sneak through, now they just walk across and give themselves up.”
The lax enforcement led to the so-called “catch-and-release” policy, under which hundreds of thousands of illegal border crossers were briefly detained before being set free into the United States with a court date several years down the road.
Immigration courts are so backlogged that it can be five years from when someone is apprehended at the border to their court date. The immigration court backlog for all immigration cases sits at almost 700,000 cases—triple that in 2009.
Critics are blaming the Trump administration for the family separations, calling it an atrocity and likening the detention centers to concentration camps.
Photos of children crammed into detention facilities are being shared on social media—however, many of those photos are from 2014, when the Obama administration detained hundreds of illegal immigrants that flooded the border, many of whom were unaccompanied minors.
Former First Lady Laura Bush wrote an op-ed on June 18 that called the zero tolerance policy cruel and immoral. However, she neglected to mention that it was a critical component of her husband’s immigration priorities.
House Minority Leader Rep. Nancy Pelosi (D-Calif.) released a statement on June 18 saying the policy “leaves a dark stain on our nation.”
Sen. Dianne Feinstein (D-Calif.) introduced legislation on June 8 that would prevent the Department of Homeland Security from separating parents and children unless the child is being trafficked or abused by their parents. As of June 18, it has 37 Democrat and two independent cosponsors, but is unlikely to pass.
“Donald Trump, stop this atrocity. America does not take children from parents in this vile manner,” she said on Twitter on June 18.
The administration says it is simply following the laws set by Congress and it is up to the legislative body, specifically Democrats, to fix the loopholes in the immigration system.
“There are some who would like us to look the other way when dealing with families at the border and not enforce the law passed by Congress—including some members of Congress,” Nielsen said.
“Past administrations may have done so, but we will not. We do not have the luxury of pretending all individuals claiming to be a family are, in fact, a family. We have to do our job. We will not apologize for that. We are sworn to do that.”
Nielsen said the main loopholes Congress needs to fix include the TVPRA, which has a provision that says a minor from a noncontiguous country cannot be turned back to Mexico or flown back to their home country—even if the individual is not a victim of trafficking, nor if their age, identity, credible fear status, or criminal background cannot be verified.
Another loophole is the Flores Settlement Agreement, which mandates that a minor be transferred to HHS’ Office of Refugee and Resettlement within 72 hours of apprehension by Border Patrol. HHS is mandated to temporarily house the minors and then release them to a sponsor within the United States. Most are released within an average of 57 days.
Under the same agreement, family units are transferred from Border Patrol to Immigration and Customs Enforcement, which must release them after 20 days.
The administration wants Congress to terminate Flores—a Clinton-era settlement of a class-action lawsuit—and fold relevant care provisions into the TVPRA.
Over the last 10 years, asylum claims have increased by 1,700 percent, Nielsen said, adding that Congress also needs to address loopholes that allow people to take advantage of the system.
At the border, illegal immigrants can claim asylum by passing a credible fear screening—of which around 80 percent pass. They are then released into the country and are expected to submit an asylum application within a year.
Half do not file an official asylum application within the requisite year, according to administration officials, and most will not show up to their subsequent immigration hearing.
If applicants do file an asylum claim (which is free) and it has been pending for six months, then they are routinely provided with work authorization—regardless of the merit of the application.
“I have no doubt that many of those crossing our border illegally are leaving behind difficult situations. But we cannot take everyone on this planet who is in a difficult situation,” Sessions said on May 7.
He cited a 2012 Gallup poll, which found that 150 million people around the world would like to immigrate to the United States.
Sessions clarified in a June 11 court ruling that individuals who are fleeing crime and domestic violence, and are not persecuted by their own government, do not fall under the asylum criteria.
“Our nation’s immigration laws provide for asylum to be granted to individuals who have been persecuted, or who have a well-founded fear of persecution, on account of their membership in a ‘particular social group,’ but most victims of personal crimes do not fit this definition—no matter how vile and reprehensible the crime perpetrated against them,” a Justice Department spokesman said on June 11.
Nielsen said the administration will continue to enforce the laws until Congress changes them.
“To a select few in the media, Congress, and the advocacy community, I have a message for you: This Department will no longer stand by and watch you attack law enforcement for enforcing the laws passed by Congress,” she said. “We will not apologize or back down for doing the job the American people expect us to do.”