The Slatest

Newly Uncovered Memo Suggests Kirstjen Nielsen Lied to Congress About Family Separation

Kirstjen Nielsen speaks into a microphone.
Kirstjen Nielsen speaks during a hearing of the Senate Homeland Security and Governmental Affairs Committee on May 15 in Washington. Brendan Smialowski/Getty Images

On Monday, good government groups released a heavily redacted and previously confidential Trump administration memo from April outlining and authorizing what would ultimately become the White House’s disastrous family separation border policy.

The memo, obtained via a Freedom of Information Act request by Open the Government and the Project on Government Oversight, mentions a series of options that were presented to Secretary of Homeland Security Kirstjen Nielsen on April 23 for how to approach the Justice Department’s “zero tolerance” policy on prosecuting undocumented border crossers.

Contrary to Nielsen’s public statements, the memo made clear that this was a family separation policy. Nielsen seems to have misled Congress and the American people when she repeatedly claimed that there was no policy of separating families at the border.

The policy in question resulted in more than 2,500 children being taken unlawfully from their parents by the Trump administration before it was halted by a federal court in June as a violation of the Due Process Clause of the Constitution. After the court ordered that separated families be reunified, it was revealed that hundreds of parents were deported without their children. The administration is still in the process of attempting to reunite those families—as of last week at least 182 potentially eligible children had not been reunified with their parents.

At the time that the policy was falling apart, though, Nielsen was publicly insisting that no such policy existed.

• On May 10, she told NPR: “It’s not our intent to separate people one day longer than is necessary to prove that there is in fact a custodial relationship.”

• Under questioning by Sen. Kamala Harris of the Senate Homeland Security and Governmental Affairs Committee on May 15, Nielsen stated: “We do not have a policy to separate children from their parents.”

• And on June 17, she tweeted: “We do not have a policy of separating families at the border. Period.”

Now the memo reveals that this was in fact a policy that she did apparently sign off on.

That memo—sent to Nielsen by Director of Immigration and Customs Enforcement Thomas Homan, Director of Citizenship and Immigration Services L. Francis Cissna, and Customs and Border Protection Commissioner Kevin K. McAleenan—offered three possible options for enhanced border enforcement.

Homan, Cissna, and McAleenan recommended “Option 3 as the most effective method to achieve operational objectives and the Administration’s goal to end ‘catch and release.’” That third option involved prosecuting and separating those “presenting with a family unit, between ports of entry in coordination with DOJ.”

The memo also described how Nielsen could “direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted.” It requested Nielsen’s “decision on whether to pursue increased prosecution” and “guidance on the preferred option.” The signature on the memo, which was addressed to Nielsen alone, is redacted, but Option 3 was selected.

Both groups are appealing the memo’s heavy redaction. “The Secretary of Homeland Security is a high-level public official; using privacy exemptions to hide her role in major policy decisions is unacceptable,” they stated.

An unredacted version of the memo, obtained by the groups but not released by them for reasons of source protection, described the argument behind recommending the third option. The memo stated that it was “very difficult to complete immigration proceedings and remove adults” who came with children and that separating families would “increase the consequences for illegally entering the United States.”

The Washington Post originally obtained the memo this past spring and described portions of it in an article that indicated that Nielsen had been presented with two other options: “prosecuting all single adults, and ramping up government resources accordingly; or working with prosecutors to charge as many adults as possible, using existing resources, which the memo said would be the least effective approach.”

She chose the option that separated families.

The Post also noted that the memo described a “pilot program” for family separation in the El Paso sector between July 2017 and November 2017, which the memo’s authors credited with a decrease in illegal family border crossings of 64 percent.

In response to questioning in front of the House Appropriations Subcommittee on Homeland Security on April 11—before the memo was signed but after the pilot program had been undertaken and the zero-tolerance policy announced—Nielsen denied that DHS would separate families for any reason other than the welfare of children and to combat child smuggling.

“The standard is to in every cases, keep that family together as long as operationally possible,” she testified. “When we separate, we separate because the law tells us to and that is in the interest of the child. So, if we cannot confirm that adult who is accompanying them is either a legal guardian or parent, we do seek to, as you say, verify that.”

Less than two weeks later, Nielsen apparently signed off on a policy that, according to the administration’s own officials, was likely to cause untold psychological trauma to hundreds of such children. Congress deserves—and should demand—a full record and accounting of how she came to make that decision, and then lie to the American people about it.

Update, Sept. 26, 6:25 p.m.: DHS spokeswoman Katie Waldman issued this statement on Wednesday: “The oft cited quote pulled from the April 23 memo simply states the premise that DHS has the legal authority to take an action – however, it did not direct a policy of family separation for the purposes of deterrence. Conflating authority vs. actual policy based on a redacted memo provides a disservice to the public and does not show the full picture of considerations presented to the Secretary.”