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Nielsen: Separating families isn't a 'policy,' it's just something we do

Homeland Security Secretary Kirstjen Nielsen told reporters Monday that it was “offensive” to imply that the administration had a “policy” of separating parents from children at the border — even though it was the stated purpose of the controversial change in enforcement procedures put in place by the Trump administration.

“I find that offensive,” Nielsen said when asked at Monday’s White House briefing if the separation of parents from children was meant to send a message. “Why would I ever create a policy that purposely does that?”

But that was in fact one purpose of the “zero-tolerance” policy announced earlier this year by Attorney General Jeff Sessions, which has separated some 2,000 migrant children from their parents since it was instituted. Nielsen’s predecessor in running the Department of Homeland Security, current White House chief of staff John Kelly, has stated repeatedly that separating children from their parents would work as a deterrent.

Kelly first mentioned the idea in a March 2017 interview with CNN. When asked if Homeland Security officials would separate children from their parents to deter illegal immigration, Kelly replied, “I am considering exactly that.” Kelly reiterated this stance in a May interview with NPR:

Homeland Security Secretary Kirstjen Nielsen. (Photo: Pablo Martinez Monsivais/AP)

NPR: Family separation stands as a pretty tough deterrent.

Kelly: It could be a tough deterrent — would be a tough deterrent. A much faster turnaround on asylum seekers.

NPR: Even though people say that’s cruel and heartless to take a mother away from her children?

Kelly: I wouldn’t put it quite that way. The children will be taken care of — put into foster care or whatever. But the big point is they elected to come illegally into the United States and this is a technique that no one hopes will be used extensively or for very long.

Nielsen claimed the administration is simply enforcing current immigration laws (there is no law requiring such actions), echoing the position of some but not all of her colleagues in the administration. Nielsen and others have blamed Democrats for the nonexistent law and failure of reform passing in Congress despite Republicans holding both.

On Sunday, Nielsen stated that “We do not have a policy of separating families at the border. Period.” That remarkable statement seems to hinge on the definition of the word “policy.” Indisputably, parents and children are in fact being separated when the adults are caught crossing into the United States illegally — i.e., not at an official Port of Entry. But on Monday she presented this as a byproduct of Sessions’s zero-tolerance approach, rather than an intended consequence of a new “policy.”

People who’ve been taken into custody at a facility in McAllen, Texas, June 17, 2018. (Photo: U.S. Customs and Border Protection’s Rio Grande Valley Sector via AP)

White House press secretary Sarah Sanders and Sessions have both cited the Bible in defending the policy, a tactic that has received pushback by religious leaders. Some parents have been deported without their children, while others have said they were told their children are being taken away to bathe and then did not see them again. There are questions about whether the government has a plan to reunite the families they’ve separated. Many of those attempting to cross the border are fleeing violence in their home countries, but new policies would disallow asylum seekers for the reasons of domestic abuse and gang violence.

The homeland security chief also said that she had not seen photos of the children in cages or heard an audio tape of them crying while Border Patrol officers joked. Nor could she tell reporters where young girls and toddlers were being held. On Monday, Democratic Sens. Kamala Harris and Dianne Feinstein called on Nielsen to resign.

The policy announced by Sessions was to incarcerate and charge anyone attempting to cross the border illegally. The policy’s goal, per a memo obtained by the Washington Post, is to deter border crossings. Since children are not allowed in jails, they are being housed in hastily constructed holding facilities in, among other places, an unused former Walmart and in tents.

Nielsen echoed the president’s claims that Congress alone can solve the crisis at the border, and once again blamed Democrats for so-called loopholes in the immigration system that, she said, “create a functionally open border.”

Of the “three major loopholes” listed by Nielsen, only one is actually a law: the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. Known as the TVPRA, this bipartisan piece of antitrafficking legislation was among the last laws signed by Republican President George W. Bush. In an effort to combat sex trafficking, it mandated that children from noncontiguous countries (i.e. anywhere other than Canada or Mexico) who are caught entering the United States alone must not be immediately sent back to their country of origin but first given the chance to appear at an immigration hearing. In the meantime, the law required that such kids be put in the custody of the Department of Health and Human Services, which would then be tasked with placing them “in the least restrictive setting that is in the best interest of the child” and, if possible, reuniting them with family in the U.S.

Photo: U.S. Customs and Border Protection’s Rio Grande Valley Sector via AP

The TVPRA appears to have contributed to the 2014 surge of unaccompanied Central American minors crossing from Mexico. However, at the time, Republicans in Congress rejected efforts to place full blame for the crisis on the law itself, acknowledging that the flood of young people over the border was an unintended consequence resulting from an unforeseen combination of circumstances.

The second major loophole referenced by Nielsen was a 1997 legal settlement known as the Flores Agreement, which established legal standards for the detention of immigrant children. The ruling called for such children to generally be released without unnecessary delay and, like the TVPRA, required that, if detained, children be placed in the least restrictive setting possible. How the Flores Agreement should be applied in the case of children who’ve crossed the border with their parents has been the subject of debate over the years, but the previous two administrations have not interpreted its standards for the treatment of immigrant children to amount to a requirement that they be separated from their parents.

Finally, Nielsen argued that the Democrats in Congress are to blame for failing to reform our nation’s asylum laws, repeating a claim commonly made by Attorney General Jeff Sessions that the current asylum system is rife with fraud and “fails to assist asylum seekers who legitimately need it.” While there has, indeed, been a significant increase in asylum cases within the past 10 years, experts have found no credible data to back up the assertion that a large percentage of those claims are fraudulent.

White House officials have said that the separation of children from their parents could be used as leverage in negotiations with Democrats for the comprehensive immigration bill Sanders said President Trump wants, presumably including a wall on the southern border. Every Senate Democrat has signed onto a bill proposed by Feinstein that would attempt to fix the issue of border separations. It does not include money for the border wall.

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