In January, the Department of Justice’s (DOJ) Office of the Inspector General (OIG) released a report confirming, in great detail, that the Trump administration knowingly and willfully implemented a policy to separate immigrant children from their families. Entitled “Review of the Department of Justice’s Planning and Implementation of Its Zero Tolerance Policy and Its Coordination with the Departments of Homeland Security and Health and Human Services,” the report demonstrates how easily federal officials within DOJ manipulated immigration law to separate families—and how our system remains vulnerable to future abuses unless there is clear and swift reform of federal policy and law.

Chiefly, the report found that: 1) the Office of the Attorney General (AOG), led by then Attorney General Jeff Sessions, failed to effectively prepare for, or manage, the “Zero Tolerance” policy; 2) then Attorney General Sessions understood and accepted that the policy would result in the separation of children from their parents; and 3) DOJ’s single-minded focus on increasing immigration prosecutions came at the expense of the health and well-being of immigrant children and their families.

OIG serves as a watchdog for DOJ, and its 93-page report was based on interviews with senior administration officials directly involved in the implementation of the “Zero Tolerance” policy—including then Deputy Attorney General Rod Rosenstein, then OAG Chief of Staff Matt Whitaker, and Counselor to the Attorney General Gene Hamilton. The report details how even prior to its implementation, the administration knew, and intended for, the policy to result in the separation of children from their families. In the lead up to the policy, administration officials repeatedly referenced plans to “increase the prosecution of family unit parents” and “separate family units”—thus disproving later claims that the administration never intended to separate children from their parents.

Even when other DOJ federal officials expressed concern over the policy, senior political appointees refused to relent. In April 2018, U.S. Attorneys based along the southwest border raised significant concerns about the policy with the OAG. In May 2018, the Executive Office for United States Attorneys (EOUSA) sent an email to OAG describing concerns on behalf of its U.S. Attorneys—the federal attorneys prosecuting the cases against parents. The email asked OAG to describe what “safeguards” were being put in place to protect children and to ensure reunification of separated families. Sessions responded to these concerns as follows:

“We need to take away children. If [they] care about kids, don’t bring them in. [We] won’t give amnesty to people with kids.”

Perhaps most troubling, as the detrimental effects of the policy became readily, Attorney General Sessions and the OAG did nothing to change course or address the harms to families. Sessions continued to push for the prosecution of as many parents as possible, without regard for family unity, including in cases involving children under five years old.

As a result of the administration’s intentional cruelty, more than 5,400 children were separated from their families. Despite uninterrupted work by human rights organizations including the Young Center for Immigrant Children’s Rights, community groups, and advocates, approximately 600 children remain separated.

The Biden-Harris administration must take concrete and meaningful steps to rectify this harm. The administration has already announced a task force intended to reunify all separated families. It must go further, however, and ensure that each family subjected to this particular harm—one with lasting consequences for the health of children and their parents—has an opportunity to return safely and receive permanent protection in the United States. Additionally, the administration and Congress must enact legislation that will prevent family separation in the future. One step in that direction would be the enactment law and policies that require each federal agency in a child’s immigration case to consider the child’s best interests in every decision. For years, the Young Center has worked with experts in child protection, immigration law, and with federal agencies to define best interests in the context of children’s immigration proceedings. We urge the Biden-Harris administration to leverage this shared expertise and establish policies that require all government actors to consider the best interests of the child—their safety, their expressed wishes, and their rights to family integrity, liberty, development, and identity—in every decision impacting the child, and to support legislation to create such a mandate in federal law. Only then can we trust that the failures identified in the DOJ’s report are not repeated.

Written by Young Center Policy Analyst Robert Cotter.

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