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DHS Secretary Kirstjen Nielsen’s defense of separation of families at the border: it’s not a “policy”

Her tweet is accurate in the narrowest sense. But her department is still choosing to separate kids from their parents.

President Trump Participates In The U.S. Coast Guard Change of Command Ceremony Olivier Douliery/Pool/Getty Images

The nationwide outrage over the Trump administration’s separation of families at the US-Mexico border has the administration on the defensive. Some officials defend family separation as a totally justifiable action when parents have crossed the border illegally; others (including the president himself) claim the administration has no choice but to separate families because of some “law” that does not, in fact, exist.

And then there’s Homeland Security Secretary Kirstjen Nielsen, who thinks the right response is to assert flatly that “We do not have a policy of separating families at the border. Period.”

Nielsen’s tweet is true — but only in the narrowest and most pedantic way possible. As I wrote last week:

To be clear, there is no official Trump policy stating that every family entering the US without papers has to be separated. What there is is a policy that all adults caught crossing into the US illegally are supposed to be criminally prosecuted — and when that happens to a parent, separation is inevitable.

Administration officials knew full well that by signing off on a “zero-tolerance” prosecution policy (which was formally rolled out in early May), they were going to cause thousands of parents to be separated from their children. The Washington Post’s Maria Sacchetti reported in April on the existence of a memo from senior Department of Homeland Security officials urging Nielsen to adopt the “zero-tolerance” policy; the first sentence of Sacchetti’s piece describes the proposal as “a stark change in policy that would result in the separation of families that until now have mostly been kept together.”

In fact, it’s hard to argue that DHS officials aren’t referring parents to be prosecuted, at least in large part, so that they can separate parents from their children.

The Trump administration is working to detain as many immigrants who arrive in the US without papers as possible — even if they’re seeking asylum, which they have the legal right to do. But because a decades-long court settlement requires the government to release children from immigration detention “without unnecessary delay,” the parents taking care of those children would have to be released as well.

By sending parents into the custody of the Justice Department for criminal prosecution, however, the Trump administration forces itself to separate parents from their children — because kids can’t be detained with parents in criminal jail — and treat the children as “unaccompanied alien minors” as if they had crossed the border alone.

To administration officials, this is a fitting punishment. Nielsen underscored the idea that family separation is a penalty for crossing the border illegally in her earlier tweet:

It sounds reasonable enough. The problem is that when asylum seekers try to follow the law by presenting themselves at official border crossings to ask for asylum, rather than crossing into the US illegally and presenting their asylum claim to the Border Patrol agent who picks them up, they’re often being told they can’t come in.

The Trump administration is telling asylum seekers at multiple ports of entry in California and Texas that they don’t have room to process them today — keeping people waiting outside for days on end, without any indication as to when they will be allowed to seek asylum legally. And some asylum seekers, according to reports, are being physically blocked from setting foot on US soil, which would give them the legal right to pursue an asylum claim.

Families who try to seek asylum at ports of entry can’t even be assured that they won’t be separated anyway. The lead plaintiff in the American Civil Liberties Union’s lawsuit against the separate detention of parents and children is a Congolese woman who entered the US legally with an asylum claim and was separated from her child for months.

While the Trump administration claims that it only separates families who enter legally if they are concerned about the safety of the child or if they feel there is insufficient evidence that the adult is, in fact, the child’s legal guardian, it’s not clear how they make that determination — which is to say, there’s no proof they aren’t abusing that discretion.

There are legalistic reasons for Nielsen not to own up to the consequences of her department’s policy — as Roque Planas pointed out for the Huffington Post, officials could strengthen the legal case against family separation if they admitted it was a “deterrent.” It’s probably not the best alternative to rely on the technical meaning of the word “policy” to issue a tweet that makes it sound like you’re denying the existence of a practice that has been on the front pages for days.

For more on the family separations at the border, listen to the June 18 episode of Today Explained.

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