It was an idea conceived by senior immigration enforcement officials and U.S. border agents who had confronted the migrant crisis of 2014. By ramping up criminal prosecutions and separating families who enter the country illegally, they said, the government could stop the influx.
Their idea went to top Obama administration officials at the White House and the Department of Homeland Security. Then it went into a drawer, like a blueprint for a weapon too terrible to use.
The Trump administration took office willing to go deep into the government’s immigration enforcement arsenal – even at the risk of triggering a political and humanitarian crisis. Now, what once was seen as an option too toxic and extreme has fractured more than 2,500 migrant families in the past two months, feeding public outrage while testing Americans’ willingness to accept a government policy that inflicts child trauma.
It took the alignment of four distinct personalities to dust off the idea and turn it into a legal, operational and message-driven system for family separation at the border.
President Donald Trump, Attorney General Jeff Sessions, White House senior policy adviser Stephen Miller, and White House Chief of Staff John Kelly played crucial roles in resurrecting the proposal and making it actionable. In Border Patrol terminology, it was based on the concept of “consequence delivery” – the notion that illegal acts can be deterred only if they trigger negative consequences.
The idea worked its way back into the DHS tool kit soon after Trump took office. Arrests at the Mexico border had surged in the months before his inauguration. When Kelly took over the agency as Trump’s first homeland security secretary, he began looking for policy options to prevent a repeat of 2014, when migrant families and underage minors overwhelmed U.S. border agents and stations.
One of the initiatives that made its way to Kelly, according to current and former DHS officials, was outlined in a memo written in the aftermath of the 2014 by senior Homeland Security officials, including Thomas Homan. A former Border Patrol agent, Homan is now the soon-to-retire top official at Immigration and Customs Enforcement.
The memo warned that the United States would be vulnerable to another migrant crisis at the border because smugglers were taking advantage of laws limiting the government’s ability to hold underage minors in detention. Under a 1997 agreement known as the “Flores Settlement,” the government is obligated to release migrant children in its custody, either to their parents, adult relatives or a foster care program. The ruling compels U.S. officials to place children in the “least restrictive” setting possible.
Those rules had become a powerful magnet for illegal migration, Homan and other DHS officials warned, as parents sent for their children by hiring smugglers or bringing their children with them to leave U.S. custody faster, they said.
The memo was sent to then-Homeland Security Secretary Jeh Johnson, according to current and former officials. But their recommendations – including family separations triggered by the misdemeanor offense of entering the United States illegally – were considered excessive.
“As I’ve explained many times, separating a child from his or her parent is not something I was comfortable doing,” said Johnson, in an interview Tuesday.
Johnson said he did not recall specific details in the memo, but had asked for input from top officials across DHS agencies, including ICE, where Homan was then the director of Enforcement and Removal Operations.
“I encouraged them to bring forth all options,” said Johnson. “I would not have discouraged Tom [Homan] from suggesting something he thought was a good idea.”
A DHS official confirmed that Homan helped develop the policy proposal sent to Johnson.
Homan’s views conveyed the grievances of many senior Border Patrol agents and immigration officials, Brandon Judd, president of the National Border Patrol Council, the agency’s union, said in an interview Tuesday.
“It’s frustrating to agents when we know that smugglers are gaming the system,” he said. “These people can cross between ports of entry because they know that it ties up our resources.”
“We get frustrated when smugglers dictate their terms to us,” Judd said.
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When Kelly took over at DHS in January 2017, border agents like Judd and immigration officials including Homan had a top leader who shared their view of the criminal forces driving illegal migration.
Kelly was the head of U.S. Southern Command between 2012 and 2016, in charge of U.S. military operations in Central and South America. He developed a close relationship during those years with Honduran President Juan Orlando Hernández and helped lead U.S. campaigns to discourage Central American migrants from attempting the journey. Kelly also visited shelters and spoke to families making the trip.
“I think his experience convinced him that there was nothing worse than the trip up to the U.S. that these migrants were taking,” said Roberta Jacobson, who retired last month as U.S. ambassador to Mexico. She was the top official for Western Hemisphere affairs at the State Department and worked closely with Kelly.
Jacobson said Kelly, a four-star Marine general, was particularly disturbed by the widespread reports of women and girls being raped along the route north. Along with drug traffickers, Kelly viewed smuggling guides as “bad guy” enemy combatants, according to military and Homeland Security officials who worked with him then.
“I think he truly believed that stopping undocumented immigration from Central America was right thing to do, not just for us, but for them, to save them from that horrific journey,” said Jacobson. “In his view, encouraging people to come by not sending them back was worse than sending them back.”
CNN’s Wolf Blitzer asked Kelly in March 2017 if DHS was considering a family separation plan to deter illegal migration.
“Yes, I am considering – in order to deter more movement along this terribly dangerous network – I am considering exactly that,” Kelly told him. “They will be well cared for as we deal with their parents.”
“It’s more important to me,” said Kelly, “to try to keep people off of this awful network.”
The backlash was swift. Within weeks, Kelly had changed course, saying the administration was no longer considering the idea. But that wasn’t true.
The pressure on Kelly was easing, lessening the urgency for drastic action. Border arrests fell to their lowest levels in more than a half-century as Trump and top administration officials promised a sweeping crackdown that would “take the gloves off” enforcement tactics.
The family separation idea stayed on a back burner, and by the time Kelly moved to the White House to become chief of staff, arrests along the Mexico border were slowly rising again. Since then, the number of arrests has nearly tripled, exceeding 50,000 for each of the past three months.
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Sessions began working through the plan’s legal implications soon after he started at the Justice Department. In April 2017, he traveled to Nogales, Arizona, and promised to take a stand against violent cartels and gang members, as well as smuggling guides.
Sessions directed all federal prosecutors across the country to make immigration cases a higher priority and look for opportunities to bring serious felony charges against anyone crossing the border illegally. In a three-page memo, he directed each of his U.S. attorneys to appoint a border security coordinator to oversee immigration prosecutions. He said law enforcement officials would no longer “catch and release” undocumented immigrants taken into custody at the border.
Sessions’ directive also set the stage for his announcement in May that the Justice Department would begin prosecuting every person who illegally crossed into the United States along the Southwest border, and that federal prosecutors would “take on as many of those cases as humanly possible until we get to 100 percent.”
“If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law,” Sessions said then. “If you don’t want your child separated, then don’t bring them across the border illegally. It’s not our fault that somebody does that.”
The Justice Department’s latest immigration policy and the other immigration actions Sessions has taken as attorney general do not surprise those who’ve followed his 20-year career as a senator from Alabama. In the Senate, Sessions vigorously opposed any efforts to change the U.S. immigration system to benefit people who were in the United States illegally. He also advocated hardening the system for legal immigration and expressed fear that people from other countries could take Americans’ jobs.
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As the furor over the separations intensifies, Kirstjen Nielsen, Kelly’s handpicked choice to succeed him as homeland security secretary, has stepped forward to defend the policies, along with Miller, who insists that Trump’s crackdown still enjoys broad support despite polling that indicates two-thirds of Americans want the practice to stop.
Trump said Tuesday the measures need more time to work and that backing off now would send the wrong signal to smugglers – one that would encourage more lawbreaking.
“When people come up, they have to know they can’t get in, otherwise it’s never going to stop,” he said, accusing Democrats of blocking his agenda to allow illegal immigration to “infest” the country.
“Politically correct or not, we have a country that needs safety and security,” Trump said, insisting the United States has “one chance to get it right.”
Border crises have come in cycles, and Gil Kerlikowske, who was head of U.S. Customs and Border Protection under Obama, said he doubted that a threat of family separation will deter many people fleeing horrific violence in Central America.
“You have to have a heart of stone if you can’t feel some level of compassion for these people,” he said. “If people are willing to risk lives dying in the desert, or to be raped or robbed or assaulted, I’m not sure a stronger message will make a difference.”
(c) 2018, The Washington Post · Nick Miroff, Sari Horwitz