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Secretary Nielsen Denied It, But DHS Memos Show She Likely Knew Exactly What Child Detention Policy Would Do

A document sent to Secretary Kirstjen Nielsen in April suggested that prosecuting parents and separating them from their children would be an effective deterrent to migration

Homeland Security Secretary Kirstjen Nielsen testifies during a hearing held by the Senate Judiciary Committee on January 16, 2018 in Washington, D.C. (Photo: Win McNamee/Getty Images)

A Department of Homeland Security (DHS) memo obtained by two government watchdog groups confirm what critics of President Donald Trump's separation of families have suspected for months—that the practice was the result of a policy proposed and approved of by the Trump administration, specifically Attorney General Jeff Sessions and DHS Secretary Kirstjen Nielsen, not actions or inaction by Democrats in Congress.

Open the Government and the Project On Government Oversight (POGO) obtained several documents from the department via a Freedom of Information Act (FOIA) request, including a memo dated April 23, which outlines three routes the administration could take to increase "immigration violation prosecution referrals." The memo was sent from three department officials to Secretary Kirstjen Nielsen, who later vehemently denied that she had enacted the policy. 

"The American public deserves to know what our government has been thinking in terms of how to carry out these extremely devastating policies." —Emily Creighton, American Immigration Council

The third option, reads the memo, would be "the most effective method to achieve operational objectives...This initiative would pursue prosecution of all amenable adults who cross our border illegally, including those presenting with a family unit. A line marked "approve" for "Option 3" was redacted by FOIA officers, suggesting that Nielsen had signed on the line.

At The Intercept, Cora Currier noted that officials wrote that Option 3 would "have the greatest impact on current flows," suggesting it was proposed as a deterrent to immigration.

"The newly disclosed documents provide a window into the internal policymaking behind the crisis that continues to haunt thousands of children," Lisa Rosenberg, executive director of Open the Government, said in a statement. "The administration needs to make available records that are still secret in order to fully understand why decisions were made to separate children from their families, and who made them."

The two groups publicized the documents as hundreds of children are still in government custody without their parents, two months after a court-ordered deadline for reuniting the thousands of families the administration separated.

As anger over the policy grew over the summer, Nielsen insisted that the practice was the result of the 1997 Flores settlement, which limits the amount of time children who cross the border with their parents can be detained, and an anti-human trafficking law passed in 2008.

"We do not have a policy of separating families at the border. Period," Nielsen tweeted on June 17. She also scoffed at a reporter's suggestion that the family separation practice was meant to deter migration—a fact that was made explicit in the April 23 memo. 

"This is part of a story to be told here about the humanitarian travesty," Emily Creighton, deputy legal director at the American Immigration Council, told The Intercept. "I think the American public deserves to know what our government has been thinking in terms of how to carry out these extremely devastating policies."

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