Before the Mueller report was released, congressional hearings, news stories, and Secretary of Homeland Security Kirstjen Nielsen’s resignation brought the administration’s atrocious separation of families back into into the forefront of the news. Some of the stories included reports that the administration is weighing whether to start family separations again (the President apparently “support[s]” a “renewed child separation policy”).

But it was nothing more than a blip that the administration apparently identified an additional 1700 children it had separated from their families. And it barely registered that that former Chief of Staff John Kelly (the person who was supposed to be the “adult” in the room) joined the board of Caliburn International, the company that operates the biggest shelter for unaccompanied migrant children. Kelly oversaw the separation of thousands of children from their parents; he’ll now profit off of it. When questioned about the cruelty of separating a parent and child, Kelly responded: “I wouldn’t put it quite that way. The children will be taken care of -- put into foster care or whatever.” Now he is poised to oversee that cruel “whatever.”

We should never lose sight of the gravity of the administration’s separation of families, at least until every family has been reunited and we understand who was involved in this moral travesty.  The news that we are still identifying and tallying the number of children that this administration separated from their families invites us to revisit the weak arguments and legal obfuscations the administration has offered to defend its separation of families.  No matter what explanation the administration offers, its forcible separation of families is a blatant disregard for basic human rights, as international leaders, international bodies, and other countries have reiterated.

Congressional democrats have questioned both then acting attorney general Matthew Whitaker and former Secretary of Homeland Security Kjersten Nielsen about the administration’s family separations. Their responses—that the administration does not have a policy of separating families—highlight a technique that the administration has used to defend and obscure several of its  policies.  What the administration does is to deny the existence of a policy that is not written out in its most overt, explicit fashion.  But that argument is beside the point, and has never been the standard in constitutional law: Policies can amount to discrimination even if they do not announce themselves as discriminatory.  And laws can infringe constitutional rights even if they are not written to do so explicitly (such as where a law announces “THIS LAW CRIMINALIZES THE EXERCISE OF A FUNDAMENTAL RIGHT”).  A comparison between the administration's family separation of policy and the entry ban make clear why that is. In both cases, the administration’s intent is to is to produce the very harm  that administration officials vehemently attempt to separate themselves from.

Family Separation 

Last summer, the administration faced considerable criticism both nationally and internationally for separating families.  On June 17, 2018, responding to that criticism, then-DHS Secretary Kirstjen Nielsen tweeted, "We do not have a policy of separating families at the border. Period."

In his congressional testimony, Matthew Whitaker testified similarly: “There was no family separation policy. There was a zero tolerance policy.”  DHS spokesperson Katie Waldman has echoed the claim that the administration’s enforcement policy is not a “family separation policy.”  But the context of the Trump administration’s decisions from April until June 2018—and even before then—make clear why the administration is responsible for family separations, even if it does not have a policy saying, in so many words, that it is separating families.

On April 6, 2018, the Department of Justice introduced a “zero-tolerance” policy under which all persons who cross the border without grounds for admission into the United States arereferred for prosecution for unlawfully entering the United States (in violation of 8 U.S.C. 1325(a)).  Absent this zero-tolerance policy, persons who entered the United States without grounds for admission would be placed in removal proceedings and deported, but not necessarily prosecuted.  Section 1325(a) is a misdemeanor offense, and it does not require any term of imprisonment. 

The “zero-tolerance” policy does not state explicitly that parents and children must be separated.  However, that was the inevitable consequence of the policy, as Nielsen and other Trump administration officials acknowledged; even more damning, there is evidence that shows the administration selected the policy at least partially for that reason.

The zero-tolerance policy effectuates family separations in the following way: When a child’s parents are referred for prosecution, the parents (often temporarily) enter the custody of the Bureau of Prisons (if only to be shuttled to their plea or sentencing hearings).  At that point, DOJ has argued (in briefs), a child becomes an “unaccompanied” minor under the relevant immigration statutes, and is therefore placed in the custody of the Office of Refugee Resettlement.  When the parent returns (again, even after just a brief trip to the courthouse), the separation has already happened. 

Of particular note is that the Trump administration is referring individuals for prosecutions under 1325(a) even before the individual receives a “credible fear” hearing—i.e., before an asylum officer determines if the individual has potential grounds for asylum (in which case the individual might have a lawful basis for entering the United States, and thus would not be in violation of 1325(a)).  Therefore, because the administration is, as a result of this process, separating more families based on less-substantial crimes than  before, the effect of the administration’s policy, is to increase the amount of family separations, even if the policy does not advocate for family separation on its face.

A number of organizations and entities have challenged the separation of families that result from the administration’s decisions.  The ACLU and several states have challenged the administration’s separation of and failure to reunify families.t.

In response, the administration is arguing that it does not have a family separation policy at all. While that may be true in the most literal sense, administration officials understood, before and after the administration pursued the zero tolerance policy, that the zero tolerance policy would separate families.  The administration (incorrectly) thought that the separation of families that would result from the zero-tolerance policy would deter future migration. 

Consider these statements: 

•  “Children would be separated from their parents if the families had been apprehended entering the country illegally,” John F. Kelly, then-Secretary of Homeland Security, said in March 2017, “in order to deter more movement along this terribly dangerous network.”
•  In a memorandum outlining the proposed policy obtained by the Washington Post, officials said that threatening adults with criminal charges and prison time would be the “most effective” way to reverse the steadily rising number of attempted crossings.
•  “A big name of the game is deterrence … [and separating families] could be a tough deterrent,” Kelly told NPR in May 2018. “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.”"a big name of the game is deterrence," he says.
•  In a June 2018 speech, then-Attorney General Sessions said: “I hope that we don’t have to separate any more children from any more adults. But there’s only one way to ensure that is the case: it’s for people to stop smuggling children illegally. Stop crossing the border illegally with your children. Apply to enter lawfully. Wait your turn.”
• “If people don’t want to be separated from their children, they should not bring them with them,” Sessions said in a June 2018 radio interview. “We’ve got to get this message out.”
• On June 20, 2018, President Trump signed an executive order drafted by Nielsen, designed to keep migrant families together at the Mexican border, thereby abandoning his earlier insistence that the crisis was caused by an iron-clad law and not a policy that he could reverse. 

Or consider the evidence from one of the cases challenging the separation of families: 

•  Attorney General Sessions announced an initiative to refer “100 percent” of immigrants who cross the Southwest border for criminal immigration prosecutions, also known as the “zero-tolerance policy.” Kang Decl., Ex. 38, ¶ 4. Attorney General Sessions stated that as part of that prosecution, the parent’s child “will be separated from you as required by law.” Id.

Or consider the actual statistics:  Although the administration argued that measures like the zero tolerance policy is necessary to discourage migrants from coming to the United States and submitting fraudulent asylum requests, illegal immigration has either declined or remained steady in recent years.

As these various sources suggest, the administration was fully cognizant of the effect the zero tolerance policy was having during its enforcement.  The consequences of the zero tolerance policy were well known even before the administration announced the policy: A memorandum obtained by Senator Merkeley’s office shows that the administration was contemplating separating families by pursuing criminal prosecutions back in 2017.  The memo specifically notes that the prosecution of family unit parents for illegal entry would result in “minors present with them … be[ing] placed in HHS custody as UACs” (i.e., unaccompanied minors). Several comments to that proposal specifically tie that proposal to the proposal immediately below it— and that proposal  was to “announce that DHS is considering separating family units.”  The comment recognized that “[w]ith this [prosecution of family units] and the separation idea” there would be the same consequences and the same administrative concerns. 

Consider also what the U.S. District Court for the Southern District of California said about the administration’s actions, and how they  ensured that the separation of families persisted: “The government readily keeps track of personal property of detainees in criminal and immigration proceedings, … Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainee’s release, at all levels — state and federal, citizen and alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process.”

Judge Sabraw’s decision highlighted the fact that the government could, if it wanted to, keep track of the separated children, but had not—further evidence that the administration took deliberate steps to enforce a policy not intended to keep the country safer, but to feed into a rhetoric of chaos and danger at the border.  The separation of families, as Judge Sabraw observed, is “a chaotic circumstance of the Government’s own making.”  The administration does not have to prosecute every parent for a misdemeanor offense that carries no jail time, given that doing so may lead to the separation of families.  It is choosing to do so, because it knows that separating families extracts a horrific penalty.

One need not take Judge Sabraw’s word for it.  Consider the report by the DHS Office of Inspector General, which found that “DHS was not fully prepared to implement the Zero Tolerance Policy, or to deal with certain effects of the policy following implementation.” According to the report, DHS detained hundreds of minors longer than legally allowed, gave inconsistent and incomplete information to their parents, and could not provide basic data on the separated families.  Agents misled parents about the fate, and the location, of their children. 

While the Trump administration might call its enforcement decisions anything but a family separation policy, no one should take that claim seriously.  The administration is  correct that it does not have a policy that, on its face, requires families to be separated.  But their actions (or lack thereof) surrounding the policy make clear why that is beside the point.  The administration itself triggered the forced separation of families by prosecuting everyone before and after their asylum interviews.  And the administration’s statements and the circumstances surrounding the forced separation of families make clear that the Trump administration deliberately carried out family separation as a deterrent to illegal immigration and as leverage in negotiations over immigration policy.  It doesn’t matter if there is a formal policy announcing the forced separation of families; the effect and meaning and purpose of the zero tolerance policy are very similar to a formal written policy separating families.

Travel Ban

If those arguments about the legality of the administration’s separation of families are even a little persuasive, it is worth comparing and contrasting them with arguments related to the President’s entry bans.  The administration’s argument on family separations at the border—that it does not have a policy of separating families because it has not announced a policy of family separation *as such*—mirrors an argument the administration made about the entry ban and the suspension of the refugee program.  There, the argument was that the President had not established a Muslim ban because he had not announced a policy of banning Muslims in those terms.

The administration’s defense of the entry ban (and suspension of the refugee program) was that the ban did not prohibit Muslims from entering the United States on the ground that they were Muslim.  Rather, the ban prohibited foreign nationals from certain countries from entering the United States.  This was part of the Supreme Court’s analysis as well.  In upholding the ban, the Court said “[t]he text says nothing about religion.”  (The Court also observed that the content of the proclamation changed over time, after it went through agency processes, and covered only “8% of the world’s Muslim population.”)

But as the dissent (and challengers) noted, there was considerable evidence that the purpose and effect of the proclamation was to effectuate, even in a small way, then-candidate Trump’s promise of a shutdown of Muslims entering the United States.  As Justice Breyer’s concurrence pointed out, the administration was applying the waiver and exemptions to the proclamation in a way that looked like they wanted to exclude as many people as possible:

An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants…. The Pars Equality Center identified 1,000 individuals—including parents and children of U. S. citizens—who sought and were denied entry under the Proclamation, hundreds of whom seem to meet the waiver criteria. Other data suggest the same…. Anecdotal evidence further heightens these concerns. For example, one amicus identified a child with cerebral palsy in Yemen. The war had prevented her from receiving her medication, she could no longer move or speak,and her doctors said she would not survive in Yemen. Her visa application was denied... Finally, in a pending case in the Eastern District of New York, a consular official has filed a sworn affidavit assert-ing that he and other officials do not, in fact, have discretion to grant waivers. According to the affidavit, consular officers “were not allowed to exercise that discretion” and “the waiver [process] is merely ‘window dressing.’

And Justice Sotomayor’s dissent made the case thusly:

Even before being sworn into office, then-candidate Trump stated that ‘Islam hates us,’ warned that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” despite several opportunities to do so, Presi­dent Trump has never disavowed any of his prior state­ments about Islam… Ultimately, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering the United States” has since morphed into a “Proclamation” putatively based on national-security concerns. But this new window dressing cannot conceal an unassailable fact:the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers. … The majority first emphasizes that the Proclamation “says nothing about religion.” Even so, the Proclamation, just like its predecessors, overwhelmingly targets Muslim-majority nations. [I]t is of no moment that the Proclamation also includes minor restrictions on two non-Muslim majority countries, North Korea and Venezuela, or that the Government has re­moved a few Muslim-majority countries from the list of covered countries since EO–1 was issued. [T]he inclu­sion of North Korea and Venezuela, and the removal of other countries, simply reflect subtle efforts to start “talk­ing territory instead of Muslim,” precisely so the Executive Branch could evade criticism or legal conse­quences for the Proclamation’s otherwise clear targeting of Muslims. The Proclamation’s effect on North Korea and Venezuela, for example, is insubstantial, if not entirely symbolic…. The majority next contends that the Proclamation “re­flects the results of a worldwide review process under- taken by multiple Cabinet officials.” At the out­set, there is some evidence that at least one of the individuals involved in that process may have exhibited bias against Muslims. [T]he Trump administration appointed Frank Wuco to help enforce the President’s travel bans and lead the multi-agency review process. According to amici, Wuco has purportedly made several suspect public statements about Islam: He has “publicly declared that it was a ‘great idea’ to ‘stop the visa application process into this country from Muslim nations in a blanket type of policy,’” “that Muslim populations ‘living under other-than-Muslim rule’ will ‘necessarily’ turn to violence, that Islam prescribes ‘vio­lence and warfare against unbelievers,’ and that Muslims ‘by-and-large . . . resist assimilation.’” But, even setting aside those comments, the worldwide review does little to break the clear connection between the Proclamation and the President’s anti-Muslim state­ments. For “[n]o matter how many officials affix their names to it, the Proclamation rests on a rotten founda­tion.” … Furthermore, evidence of which we can take judicial notice indicates that the multiagency review process could not have been very thorough. Ongoing litigation under the Freedom of Information Act shows that the September 2017 report the Government produced after its review process was a mere 17 pages. That the Government’s analysis of the vetting practices of hundreds of countries boiled down to such a short document raises serious ques­tions about the legitimacy of the President’s proclaimed national-security rationale. Beyond that, Congress has already addressed the national-security concerns supposedly undergirding the Proclamation through an “extensive and complex” frame­work governing “immigration and alien status.” 

The administration’s separation of families is like the travel ban in important respects—the administration has defended both on the ground that there is no formal policy that announces separating families or banning Muslims. The administration has defended both its separation of families and its entry ban on several Muslim-majority countries by focusing on the face or text of a government policy as the end-all, be-all of constitutional analysis.  The fact that the administration was successful in pursuing this argument in the entry ban case should raise concerns about whether the administration might encounter some successes later on in defending its separation of families.

At a minimum, the fact that the administration is justifying its forced separation of families on such thin, unpersuasive grounds should make clear why facial neutrality is not, and should not, be the end-all, be-all of constitutional analysis. The news that the administration has identified an additional 1700 children separated from their families should make clear that the government can do real harm no matter what it says in the text of a policy.   Everyone knows what the government is up to with its zero tolerance policies—even its own officials admit as much. 

John Kelly understands this; he’s set to profit off the policy that the administration claims does not exist.

@LeahLitman

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