So agents came up with a new term: “deleted family units.”
But when they sent that information to the refugee office at the Department of Health and Human Services, which was told to facilitate the reunifications, the office’s database did not have a column for families with that designation.
The crucial tool for fixing the problem was crippled. Caseworkers and government health officials had to sift by hand through the files of all the nearly 12,000 migrant children in HHS custody to figure out which ones had arrived with parents, where the adults were jailed and how to put the families back together.
Compounding failures to record, classify and keep track of migrant parents and children pulled apart by President Trump’s “zero tolerance” border crackdown were at the core of what is now widely regarded as one of the biggest debacles of his presidency. The rapid implementation and sudden reversal of the policy whiplashed multiple federal agencies, forcing the activation of an HHS command center ordinarily used to handle hurricanes and other catastrophes.
After his 30-day deadline to reunite the “deleted” families passed Thursday, U.S. District Judge Dana M. Sabraw lambasted the government for its lack of preparation and coordination.
“There were three agencies, and each was like its own stovepipe. Each had its own boss, and they did not communicate,” Sabraw said Friday at a court hearing in San Diego. “What was lost in the process was the family. The parents didn’t know where the children were, and the children didn’t know where the parents were. And the government didn’t know either.”
This account of the separation plan’s implementation and sudden demise is based on court records as well as interviews with more than 20 current and former government officials, advocates and contractors, many of whom spoke on the condition of anonymity to give candid views and diagnose mistakes.
Trump officials have insisted that they were not doing anything extraordinary and were simply upholding the law. The administration saw the separations as a powerful tool to deter illegal border crossings and did not anticipate the raw emotional backlash from separating thousands of families to prosecute the parents for crossing the border illegally.
Most of those parents were charged with misdemeanors and taken to federal courthouses for mass trials, where they were sentenced to time served. By then, their children were already in government shelters. The government did not view the families as a discrete group or devise a special plan to reunite them, until Sabraw ordered that it be done.
One result was that more than 400 parents were deported without their children. Many other parents say they went weeks without being able to speak to their children and, in dozens of cases, signed forms waiving their right to reclaim their children without understanding what those forms said.
Scrambling to meet the judge’s reunification deadline, government chaperons transported children from shelters scattered across the country to immigration jails near the border where they had been severed from their parents weeks or months before.
One attorney said Friday that 10 days had passed since her client was told she would be reunited with her 6-year-old daughter. She remained in detention in Texas, and neither she nor a social worker for her daughter, waiting in a New York shelter, could get an explanation. “She watched all the other mothers go out of her dorm. There is only her and one other left,” said the attorney, Eileen Blessinger.
In court filings Thursday, the government said it had reunited more than 1,800 children with their parents or other guardians. But 711 children would remain separated for now, because their parents had been deported, had criminal records or otherwise had not been cleared to regain custody.
In the end, Trump’s decision to stop separating families, followed by Sabraw’s reunification order, has largely brought a return to the status quo at the border, with hundreds of adult migrants released from custody to await immigration hearings while living with their children in the United States.
“If you’re really, really pathetically weak, the country is going to be overrun with millions of people. And if you’re strong, then you don’t have any heart,” Trump griped before his June 20 executive order, calling the situation “a tough dilemma.”
Senior administration officials said they made efforts to note which families had been broken up and that they thought the HHS system already in place would have allowed parents to recover their children and leave the country together by agreeing to voluntary deportation.
“There was always an intent for reunification to occur. It wasn’t meant to be a permanent condition,” one official said.
Sabraw, who was appointed to the federal bench by President George W. Bush, said even a short-term split was unacceptable.
“It is the act of separation from a parent, particularly with young children, that matters,” he told the government in court proceedings.
'A huge blowback'
When illegal crossings along the Mexico border jumped this spring to their highest levels since Trump took office, the president fumed, reportedly telling aides, “This can’t happen on my watch.” He singled out Department of Homeland Security Secretary Kirstjen Nielsen for blame.
Family units consisting of at least one parent and one child were a growing share of those coming across, typically to turn themselves in and claim asylum, citing drug violence and gang threats in Central America. Border Patrol officials called them “non-impactables,” meaning that the adults knew that arriving with children would probably result in their being released from detention to await immigration hearings that could be months or years away.
Agents in the field had long clamored for a way to deter those border crossers, believing that some are human smugglers and that allowing them to go unpunished invites more lawbreaking. By this spring, according to DHS, a quarter of all illegal border crossers were family groups.
“We truly felt this was something we had to do,” a senior DHS official said. “Enforcing the law for the right reasons is not a bad decision.”
Suddenly, an idea considered too extreme by the Obama administration was back in play, pushed by powerful supporters, including Attorney General Jeff Sessions, Trump policy adviser Stephen Miller and White House Chief of Staff John F. Kelly.
But there were also top officials at DHS and other agencies who warned that it could go disastrously wrong.
“Some of us didn’t think it would be good policy. Not because it wouldn’t be effective, but because it doesn’t reflect American values and because it would bring a huge blowback,” said James D. Nealon, a former DHS international policy adviser who resigned in February.
The government previously had separated parents on a more limited basis, such as when human trafficking was suspected or the adult’s relationship to the child was in doubt.
Last year, with no public announcement, the administration piloted a mass-separation system in the El Paso area. When illegal crossings jumped this spring, Trump signed off on a blanket policy for the whole border.
“If you are smuggling a child, then we will prosecute you, and that child will be separated from you as required by law,” Sessions said in a May 7 speech in Arizona. “If you don’t like that, then don’t smuggle children over our border.”
One senior Border Patrol official said agents were quietly directed not to refer parents of children under 5 for criminal prosecution. But 27 toddlers and preschoolers were separated between the start of “zero tolerance” on May 5 and Trump’s executive order ending separations on June 20. Dozens more had been taken from their parents in previous weeks.
As the system ramped up, thousands of children were funneled into shelters overseen by HHS, so many that the agency had to set up a tent camp outside El Paso and plan for additional ones on military bases.
“I think CBP and ICE would have preferred a plan that was more incremental, starting in certain locations, or with specific groups,” said Stewart Verdery, assistant homeland security secretary under Bush, referring to Customs and Border Protection, and Immigration and Customs Enforcement. “Something that could be done in a ratcheted way, so you could know exactly where people were physically and with respect to litigation status.”
On June 28, two days after Sabraw’s reunification order, DHS officials held a conference call for members of the DHS’s Homeland Security Advisory Council, a group of security experts and former officials who provide recommendations and counsel to the secretary. One member, David A. Martin, said officials had few answers when dismayed members asked how they planned to bring families back together: “They were saying, ‘Well, we’re working on it.’ ” Two weeks later, he and three other members quit the panel in disgust.
In his resignation letter, Martin said the family separations were “executed with astounding casualness about precise tracking of family relationships — as though eventual reunification was deemed unlikely or at least unimportant.”
Another member who resigned, Elizabeth Holtzman, said the failure to create records to track parents and children demonstrated “utter depravity.”
“This is child kidnapping, plain and simple,” she wrote in her resignation letter, urging Nielsen to quit.
Top officials thought that any controversy generated by the family separations could be parlayed into leverage for negotiations with Democrats over the Obama-era Deferred Action for Childhood Arrivals program and border wall funding, according to current and former DHS officials involved in planning the policy.
Instead, the firestorm has “poisoned the well,” leaving the chances of congressional action even more remote, said Verdery, who now runs a lobbying firm. “If you’re a Democrat or a moderate and a proposal is pigeonholed as DHS ‘breaking up families,’ it’s going to be a nonstarter.”
Well before Trump took office, people inside and outside HHS’s Office of Refugee Resettlement recognized that the custom-built database used since 2014 to track the migrant children in its custody was clunky and flawed.
The Unaccompanied Children Portal crashed often, according to several people with access to it. And because it sometimes failed to save information, caseworkers were trained to copy whatever information they were trying to enter about a child into a separate Word document.
Most serious, the portal was not built in a way that allowed ORR to add data categories or quickly sort the information it contains, according to three people familiar with it. If HHS staff wanted to compile specific information, such as a roster of all the pregnant teenagers at shelters, “It would be months and months,” said a former HHS official.
Because the system was not designed with an expectation that ORR would need to find the detained parents of its children, the portal did not include a column to type in information about parents’ identities, locations or file numbers.
A 2015 Government Accountability Office report concluded that “the interagency process to refer and transfer [unaccompanied children] from DHS to HHS is inefficient and vulnerable to errors because it relies on e-mails and manual data entry, and documented standard procedures, including defined roles and responsibilities, do not exist.”
By 2016, the former HHS official said, then-HHS Secretary Sylvia Mathews Burwell “was frustrated, because a lot of times, we just had to say, ‘We can’t get this data,’ or ‘We can get it, but it will take a couple of weeks.’ ”
The department hired a contractor who made recommendations for upgrading the system and adding more staff. A few improvements were made, but it was near the end of the Obama administration, and the old guard ran out of time. “We left a blueprint for the new administration to pick up,” the former official said. “To my knowledge, nothing happened.”
Just before Trump was sworn in, three immigrant advocacy groups issued a report lamenting what they said was a steady increase in the number of families being separated at the border. The report warned that “government agencies have little policy guidance on family unity and separation, and no consistent or comprehensive mechanisms to document family status or trace family members.”
After the new administration took over, “We were begging them to start counting those numbers” of separated children, said Michelle Brane, director of the Women’s Refugee Commission’s migrant rights and justice program, one of the groups that authored the report. “They insisted they don’t have a way to do that.”
An HHS spokesman said a “data element” was added to the system about two weeks ago to make clear whether a child was separated from a parent or guardian during apprehension. The system now had the capacity to generate reports, as well as to upload Word documents and spreadsheets, the spokesman said.
HHS officials said they participated in White House calls and meetings after “zero tolerance” was announced, but they did not address repeated questions about whether the department was involved in planning the policy.
The department’s refugee office was overwhelmed with the number of children in its custody once the mass separations began. And the files arriving from the Border Patrol were a mess.
In some cases, Border Patrol agents had handwritten parents’ names and alien numbers in children’s files that were sent on to ORR. But it was hit-or-miss, according to several children’s advocates familiar with the records. One HHS official said that files he reviewed typically contained parents’ names but did not say where the parents were.
The underlying problem, though, was that the problem-ridden database “was not set up to reunite children [with] parents from whom they’d been separated,” said Robert Carey, who was director of ORR for the final two years of the Obama administration.
As one senior DHS official put it: “We had a system that was designed to flow one way.”
Four days before Sabraw’s reunification order, HHS Secretary Alex Azar pulled responsibility for returning children to their parents away from ORR and placed it in the hands of emergency responders.
Today, Justice Department officials insist that “zero tolerance” remains in force. The agency “continues to prosecute, to the extent practicable, all cases referred to them for prosecution,” said spokesman Devin O’Malley.
Though illegal crossings typically decline during summer, DHS officials point to a drop in arrests along the border last month as proof the family separation system was working before the president halted it.
“Many of the facts around the enforcement efforts were lost in the media and congressional hysteria, misreporting, dishonest assertions and outright lies about the efforts of the administration,” one senior administration official vented. “The facts and rule of law lost out to emotional claims.”
Border Patrol officials privately predict that smugglers will be emboldened by flip-flopping enforcement standards and say they are bracing for the number of crossings to rise. With families once more largely exempted from detention, agents have grudgingly reverted to the “catch and release” system that Trump promised to end.
“We missed out on an opportunity to educate the public about the reality of the border,” said a Border Patrol official who shared criticism of the White House on the condition of anonymity. “You have to think everything through before you move on something like this, and when the pushback hits, you have to weather the storm.”
The American Civil Liberties Union, which brought the lawsuit that led to Sabraw’s order, said it could take months to track down hundreds of deported parents and make arrangements to return their children. Some parents may be hard to reach or hiding from the very threats that prompted them to flee their countries in the first place.
In the meantime, the government will try to place their children with vetted guardians. Otherwise, they will remain in shelters.
“It’s going to be really hard detective work,” said Lee Gelernt, deputy director of the ACLU’s Immigrants Rights Project. “Hopefully we will find them.”