Trump Administration Adopts a Border Policy Previously Spurned as Inhumane
Posted June 16, 2018 6:23 p.m. EDT
Updated June 16, 2018 6:32 p.m. EDT
WASHINGTON — Almost immediately after President Donald Trump took office, his administration began weighing what for years had been regarded as the nuclear option in the effort to discourage immigrants from unlawfully entering the United States.
Children would be separated from their parents if the families had been apprehended entering the country illegally, John F. Kelly, then the homeland security secretary, said in March 2017, “in order to deter more movement along this terribly dangerous network.”
For more than a decade, even as illegal immigration levels fell overall, seasonal spikes in unauthorized border crossings had bedeviled U.S. presidents in both political parties, prompting them to cast about for increasingly aggressive ways to discourage migrants from making the trek.
Yet for George W. Bush and Barack Obama, the idea of crying children torn from their parents’ arms was simply too inhumane — and too politically perilous — to embrace as policy, and Trump, though he had made an immigration crackdown one of the central issues of his campaign, succumbed to the same reality, publicly dropping the idea after Kelly’s comments touched off a swift backlash.
But advocates inside the administration, most prominently Stephen Miller, Trump’s senior policy adviser, never gave up on the idea. Last month, facing a sharp uptick in illegal border crossings, Trump ordered a new effort to criminally prosecute anyone who crossed the border unlawfully — with few exceptions for parents traveling with their minor children.
And now Trump faces the consequences. With thousands of children detained in makeshift shelters, his spokesmen this past week had to deny accusations that the administration was acting like Nazis. Even evangelical supporters like Franklin Graham said its policy was “disgraceful.”
Among those who have professed objections to the policy is the president himself, who despite his tough rhetoric on immigration and his clear directive to show no mercy in enforcing the law, has searched publicly for someone else to blame for dividing families. He has falsely claimed that Democrats are responsible for the practice. But the kind of pictures so feared by Trump’s predecessors could end up defining a major domestic policy issue of his term.
Inside the Trump administration, current and former officials say, there is considerable unease about the policy, which is regarded by some charged with carrying it out as unfeasible in practice and questionable morally. Kirstjen Nielsen, the current homeland security secretary, has clashed privately with Trump over the practice, sometimes inviting furious lectures from the president that have pushed her to the brink of resignation.
But Miller has expressed none of the president’s misgivings. “No nation can have the policy that whole classes of people are immune from immigration law or enforcement,” he said during an interview in his West Wing office this past week. “It was a simple decision by the administration to have a zero-tolerance policy for illegal entry, period. The message is that no one is exempt from immigration law.”
The administration’s critics are not buying that explanation. “This is not a zero-tolerance policy, this is a zero-humanity policy, and we can’t let it go on,” said Sen. Jeff Merkley, D-Ore.
“Ripping children out of their parents’ arms to inflict harm on the child to influence the parents,” he added, “is unacceptable.”
Beyond those moral objections, Jeh C. Johnson, who as secretary of homeland security was the point man for the Obama administration’s own struggles with illegal immigration, argued that deterrence, in and of itself, is neither practical nor a long-term solution to the problem. “I’ve seen this movie before, and I feel like what we are doing now, with the zero-tolerance policy and separating parents and children for the purpose of deterrence, is banging our heads against the wall,” he said. “Whether it’s family detention, messaging about dangers of the journey, or messaging about separating families and zero tolerance, it’s always going to have at best a short-term reaction.”
And that view was based on hard experience.
When Central American migrants, including many unaccompanied children, began surging across the border in early 2014, Obama, the antithesis of his impulsive successor, had his own characteristic reaction: He formed a multiagency team at the White House to figure out what should be done.
“This was the bane of my existence for three years,” Johnson said. “No matter what you did, somebody was going to be very angry at you.”
Officials met in the office of Denis R. McDonough, Obama's White House chief of staff, and convened a series of meetings in the Situation Room to go through their options. Migrants were increasingly exploiting existing immigration laws and court rulings, and using children as a way to get adults into the country, on the theory that families were being treated differently from single people.
“The agencies were surfacing every possible idea,” Cecilia Muñoz, Obama’s top domestic policy adviser, recalled, including whether to separate parents from their children. “I do remember looking at each other like, ‘We’re not going to do this, are we?’ We spent five minutes thinking it through and concluded that it was a bad idea. The morality of it was clear — that’s not who we are.”
They did, however, decide to vastly expand the detention of immigrant families, opening new facilities along the border where women and young children were held for long periods while they awaited a chance to have their cases processed. Johnson wrote an open letter to appear in Spanish-language news outlets warning parents that their children would be deported if they entered the United States illegally. He traveled to Guatemala to deliver the message in person. Opening a large family immigration detention facility in Dilley, Texas, he held a news conference to showcase what he called an “effective deterrent.”
The steps led to just the kind of brutal images that Obama’s advisers feared: hundreds of young children, many dirty and some in tears, who were being held with their families in makeshift detention facilities.
Immigrant advocacy groups denounced the policy, berating senior administration officials — some of whom were reduced to rueful apologies for a policy they said they could not justify — and telling Obama to his face during a meeting at the White House in late 2014 that he was turning his back on the most vulnerable people seeking refuge in the United States.
“I was pissed, and still am,” said Ben Johnson, executive director of the American Immigration Lawyers Association. “I thought that he had a shocking disregard for due process.” Before long, the Obama administration would face legal challenges, and be forced to stop detaining families indefinitely. A federal judge in Washington ordered the administration in 2015 to stop detaining asylum-seeking Central American mothers and children in order to deter others from their region from coming into the United States.
Under a 1997 consent decree known as the Flores settlement, unaccompanied children could be held in immigration detention for only a short time; in 2016, a federal judge ruled that the settlement applied to families as well, effectively requiring that they be released within 20 days. Many were released — some with GPS ankle bracelets to track their movements — and asked to return for a court date sometime in the future.
It was Bush, who had firsthand experience with the border as governor of Texas and ran for president as a “compassionate conservative,” who initiated the zero-tolerance approach for illegal immigration on which Trump’s policy is modeled.
In 2005, he launched Operation Streamline, a program along a stretch of the border in Texas that referred all unlawful entrants for criminal prosecution, imprisoning them and expediting assembly-line-style trials geared toward quickly deporting them. The initiative yielded results and was soon expanded to more border sectors. Back then, however, exceptions were generally made for adults who were traveling with minor children, as well as juveniles and people who were ill.
Obama’s administration employed the program at the height of the migration crisis as well, although it generally did not treat first-time border crossers as priorities for prosecution, and it detained families together in Immigration and Customs Enforcement custody — administrative, rather than criminal, detention.
Discussions began almost immediately after Trump took office about vastly expanding Operation Streamline, with almost none of those limitations. Even after Kelly stopped talking publicly about family separation, the Department of Homeland Security quietly tested the approach last summer in certain areas in Texas.
Privately, Miller argued that bringing back zero tolerance would be a potent tool in a severely limited arsenal of strategies for stopping migrants from flooding across the border. The idea was to end a practice referred to by its detractors as “catch and release,” in which illegal immigrants apprehended at the border are released into the interior of the United States to await the processing of their cases. Miller argued that the policy provided a perverse incentive for migrants, essentially ensuring that if they could make it to the U.S. border and claim a “credible fear” of returning home, they would be given a chance to stay under asylum laws, at least temporarily.
A lengthy backlog of asylum claims made it likely that it would be years before they would have to appear before a judge to back up that plea — and many never returned to do so.
The situation was even more complicated when children were involved. A 2008 law meant to combat the trafficking of minors places strict requirements on how unaccompanied migrant children from Central America are to be treated.
Minors from Mexico or Canada — countries contiguous with the United States — can be quickly sent back to their home countries unless it is deemed dangerous to do so. But those from other nations cannot be quickly returned; they must be transferred within 72 hours to the Office of Refugee Resettlement at the Department of Health and Human Services, and placed in the least restrictive setting possible. And the Flores ruling meant that children and families could not be held for more than 20 days.
In October, after Trump ended Deferred Action for Childhood Arrivals, the Obama-era program that gave legal status to unauthorized immigrants raised in the United States, Miller insisted that any legislative package to codify those protections contain changes to close what he called the loopholes encouraging illegal immigrants to come.
And in April, after the border numbers reached their zenith, Miller was instrumental in Trump’s decision to ratchet up the zero-tolerance policy.
“A big name of the game is deterrence,” Kelly, now the chief of staff, told NPR in May. “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.”
Technically, there is no Trump administration policy stating that illegal border crossers must be separated from their children. But the zero-tolerance policy results in unlawful immigrants being taken into federal criminal custody, at which point their children are considered unaccompanied alien minors and taken away.
Unlike Obama’s administration, Trump’s is treating all people who have crossed the border without authorization as subject to criminal prosecution, even if they tell the officer apprehending them that they are seeking asylum based on fear of returning to their home country, and whether or not they have their children in tow.
“Having children does not give you immunity from arrest and prosecution,” Attorney General Jeff Sessions said in a speech Thursday in Fort Wayne, Indiana.
“I would cite you to the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government,” said Sessions, quoting a Bible verse as he took exception to evangelical leaders who have called the practice abhorrent. “Because God has ordained them for the purpose of order.”