Records contradict DHS Acting Secretary McAleenan’s claims on ongoing separations

The Trump administration continues to tear apart immigrant families while hiding information about its actions from Congress, lawyers, and the public. Newly released documents along with testimonies made public for the first time today show the Department of Homeland Security to be regularly separating children from their parents on the basis of suspected and often erroneous gang affiliation, criminal histories that have no bearing on a parent’s fitness, and prosecutions for migration-related offenses (i.e. “zero tolerance”). These continuing separations, made without any apparent governing process or policy, manifest a systematic circumvention of due process rights and leave children and families suffering incalculable trauma.

“Thinking of my son alone was terrifying for me…It took almost three months for me to find out why they separated me from him. One of the officials told me it was because of my criminal record, but even though I was detained, the judge told me I hadn’t done anything wrong, and I don’t think I have a criminal record in El Salvador.”
– NIJC client, separated from her three-year-old son. 

The White House and Acting U.S. Department of Homeland Security (DHS) Secretary Kevin McAleenan would have the American public believe the family separation policy has long been abandoned, but overwhelming evidence now reveals the administration’s lies. In recent months, McAleenan has shielded Congress from information on the numbers of separations and the policy guidance followed by U.S. Customs and Border Protection (CBP) when making life-altering decisions on separations. Congress should investigate McAleenan’s statements, and scrutinize any proposals from the acting secretary, who is pushing for more funds for policies that continue to tear families apart, militarize the border, and increase detention and incarceration of immigrants.

Family separations continue

The Department of Health and Human Services (HHS) recently released data on 3,109 cases of separations carried out from February 2018 to March of this year. Three hundred and eighty-three of those separations took place after the June 20, 2018 Executive Order that purported to end the zero tolerance policy. After June 2018, DHS stopped citing the zero tolerance policy, but ratcheted up separations based on suspected criminal histories in the “US or home country.”

Of serious concern, CBP is increasingly relying on data via a transnational intelligence-sharing program involving Mexico, El Salvador, Guatemala, and Honduras to make these determinations. According to the U.S. State Department, in 2018, the intelligence sharing helped CBP identify more than 2,000 immigrants with alleged criminal histories, including individuals with suspected gang affiliations. With CBP relying on foreign data as the basis for separations, the administration is circumventing legal rights and falsely criminalizing migrants, including asylum seekers fleeing political violence.

NIJC represents mothers who were torn from their children on the basis of erroneous allegations of criminality, months after the White House claimed to have stopped engaging in this vicious practice.

• DHS officials separated Juanita from her teenage son in July 2018 after government agents accused her of gang affiliation in her home country. Despite repeated requests, ICE still refuses to present any evidence in support of its baseless accusations that she has gang affiliations. Juanita was separated from her son for eight months before the government finally released her in March 2019 after NIJC advocated extensively and threatened to file litigation. Since their traumatic separation, Juanita has suffered from severe depression, trouble sleeping, and uncontrollable shaking.
   
• Maria left El Salvador after suffering physical and sexual violence at the hands of gang members. In March 2019, immigration officials detained her and threw her son into freezing cold conditions in a CBP processing center (hielara). In the newly released HHS document, the government’s justification for separating Maria from her son is listed as, “parent has a criminal history (US or home country).” Yet for a month after she was separated from her son, Maria was completely unaware of any basis for the separation. Finally, she was informed that DHS was relying on allegations of a criminal record in her home country. Only when NIJC lawyers obtained exculpatory evidence from El Salvador confirming that she in fact had no criminal history did DHS back down. Maria and her son were apart for three months before finally reuniting in June 2019.

The new data also shows that, contrary to Kevin McAleenan’s assertions, separations still occur in order to further the “zero tolerance” policy, resulting in CBP agents referring parents for criminal prosecution for border crossing violations and tearing them apart from their children, who are transferred to the custody of the Office of Refugee Resettlement. While the official policy of prosecuting every adult for border crossing technically ended, the practice still leads to separations. The newly released HHS data indicates that four reentry prosecutions led to separations from February-March 2019, and ten separations took place from September 2018 – January 2019 where the parent was sent for “immigration prosecution,” with no criminal background.

Moreover, there is reason to believe that there are more cases of separations not registered in the HHS records. On a recent fact-finding trip to Texas Rio Grande Valley, NIJC observed first hand cases of separations resulting from entry and reentry prosecutions. On June 6, 2019, at the federal courthouse in McAllen Texas, NIJC observed two men, from El Salvador and Honduras, who were prosecuted and were separated from their children. A recent report from the Texas Civil Rights Project also documents cases, some of which are not reported to the courts or Congress, of separations due to uncorroborated allegations of gang affiliation, wrongful accusations about family relationships, and border crossing prosecutions.

McAleenan’s statements to Congress

A hard look at the evidence behind ongoing separations shows that McAleenan is hiding information and obstructing oversight by misleading members of Congress about the nature of ongoing separations.

• On June 11th, Senator Dianne Feinstein requested McAleenan provide the number of families separated since June 26, 2018. McAleenan said he did not have a number, and stated that separations only happen “for the safety and welfare of the child where we have a concern about abuse or neglect, where there is a communicable disease, an emergency medical issue, or a serious criminal prosecution unrelated to the unlawful border crossing.” According to the HHS document, however, the large majority of separations over the last year are labelled as taking place based on a parent’s “criminal history,” or “gang affiliation,” which could include prosecutions, charges, or mere allegations of past crimes based on unsubstantiated information shared from foreign governments. Additionally, the records show that separations continue to result from referrals for border crossing prosecutions of individuals with no criminal backgrounds.
   
• During the same June 11th hearing, Kevin McAleenan also told Senator Dick Durbin that the “Zero Tolerance policy lasted six weeks,” adding that “[i]t was prosecuting adults who crossed with children.” We now know that this is false. The HHS data made public today shows that separations were taking place under the “zero tolerance policy” as early as February 2018.
   
• McAleenan also told Senator Mazie Hirono that DHS “keeps careful track” of separations. Again, this also appears to be false. Legal service providers, including NIJC, continue to represent victims of separations who are not on the newly released HHS spreadsheet, indicating that CBP continues to separate without accurate tracking.

The administration is also obstructing Congress from obtaining information on the new policy guiding the separations.

• On April 30th, Representative Pete Aguilar asked McAleenan if there was written guidance used by field officers and criteria that officers or agents use when a child is separated based on criminal background checks. McAleenan said there is operational guidance, but added that his agents needed “discretion” when making decisions about separations. At that time, McAleenan said he had not reviewed the agency wide policies to ensure they were consistent, and did not know if there was any specific guidance used across DHS. If true, this statement would mean that the highest-level DHS official, responsible for overseeing past and ongoing separations, claims not to know what policy guidance is being used across agencies to take children away from their parents

NIJC calls on Congress to investigate whether McAleenan’s omission of information was intentional or due to negligence and to immediately defund policies that lead to separations.

TAKE ACTION: Tell Congress to stop funding family separation!

Jesse Franzblau is senior policy analyst with NIJC.