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Lawyers for migrants say U.S. officials slowed family reunifications

A boy and his father from Honduras are taken into custody by U.S. Border Patrol agents near the U.S.-Mexico border on June 12, 2018, near Mission, Tex. (John Moore/Getty Images)

Weeks into the Trump administration’s family-separation policy, immigration officials fired off emails saying something was awry.

The children were being reunited too quickly with their parents, an official wrote on a Friday night in late May 2018.

“What a fiasco,” Tae Johnson, an official with U.S. Immigration and Customs Enforcement (ICE), wrote to other officials at 8:29 p.m. that Memorial Day weekend. Johnson is currently the acting ICE director.

The email exchanges are part of a massive cache of internal documents the Biden administration turned over to lawyers for migrants this year after settlement talks broke down in December, forcing both sides to litigate in open court. Families who were separated have filed more than 20 lawsuits seeking millions of dollars for their pain and suffering. The May 2018 passages came to light Tuesday as part of a court filing seeking more records to bolster a pair of lawsuits in U.S. District Court in Arizona.

Lawyers for the migrants have said the Biden administration’s decision to end settlement talks means that far fewer families are likely to get compensation for the separations, but it also is making more information public, putting high- and middle-ranking officials — including some who are still in the government — under scrutiny.

Family separations: Settlement talks with Biden administration have broken down, attorneys say

Immigration and border officials and the Department of Homeland Security did not immediately respond to requests for comment about the filing, which was made public just before midnight Eastern time. The Justice Department, which represents the government in the lawsuits, declined to comment on the filings.

The U.S. government separated more than 3,000 children from their parents along the Mexican border in May and June 2018, the peak of President Donald Trump’s “zero tolerance” policy to prosecute adults for the misdemeanor offense of crossing the border illegally. DHS officials say more than 5,500 children were separated in all.

The Trump administration argued that the increase in migrant families that year was a scheme driven by smugglers, since adults traveling with children were more likely to be released into the United States.

President Biden said on the campaign trail that he abhorred the separations, and he has vowed to reunite the still-separated families, but the president balked at a proposed settlement that would have paid family members up to $450,000 apiece.

Trump’s attorney general, Jeff Sessions, and Homeland Security Secretary Kirstjen Nielsen repeatedly said at the time that the goal was to punish migrant adults for breaking the law. But migrants’ lawyers argue that the new disclosures show the government intended to separate families and deter others, and they say that bolsters their claim that the government intended to inflict harm. Many parents were separated but never prosecuted.

“Although the government told the public that family separation was merely a byproduct of a ‘prosecution’ policy, in fact it implemented a far broader policy of separating all families apprehended at the border regardless of whether the parents were prosecuted or even referred for prosecution,” lawyers for the migrants wrote in the court filing Tuesday.

Under the zero-tolerance policy, U.S. Customs and Border Protection (CBP) would transport migrant parents to federal court for prosecution and then to ICE to face deportation. Their children would be declared “unaccompanied” and sent to U.S. Health and Human Services’ Office of Refugee Resettlement (ORR), where caseworkers would house them in shelters and try to place them with a parent or guardian.

The process did not go smoothly: Hundreds of parents were deported without their children, others remain separated to this day, and many others were apart for weeks or months. Officials have said the system was unprepared to quickly reunite families, but migrant lawyers said the emails show that federal officials knew in early May, if not earlier, that migrant families were being reunited quickly and worked to prevent that from happening.

On May 10, 2018, Matthew Albence, then a high-ranking official at ICE, wrote in a memo to other officials at the agency that he was worried that parents would be returned to their children in Border Patrol stations too quickly after going to criminal court. Such prosecutions are typically quick: The offenses are so minor that migrants often plead guilty in groups and are sentenced to time served that day. CBP has 72 hours to transfer unaccompanied minors to government shelters.

“This will result in a situation in which the parents are back in the exact same facility as their children — possibly in a matter of hours — who have yet to be placed into ORR custody,” Albence wrote to then-acting ICE director Thomas Homan and other officials.

Albence said CBP should work with ICE “to prevent this from happening,” such as by taking the children themselves to ORR “at an accelerated pace” or bringing the adults directly to ICE from criminal court, instead of returning them to their children.

Albence’s concern hit a fever pitch that Memorial Day weekend, when his fears were realized in South Texas.

In the May 25, 2018, email, Johnson wrote to Albence and another official saying CBP was “reuniting adults with kids” after parents being prosecuted in McAllen, a city in the Rio Grande Valley, which was the busiest stretch of the border at the time.

Johnson, then a top official in ICE’s custody management division, said the children had already been designated as unaccompanied but that ORR refused to take them to shelters once their parents returned from court.

“Transportation arrangements are now being canceled and presumably the males (heads of households) are being released,” Johnson wrote to Albence. “What a fiasco.”

“We can’t have this,” Albence, then the ICE executive associate director, shot back one minute later.

Another ICE official, David Jennings, wrote a few minutes later that ORR wouldn’t take an accompanied child.

“No consequence at this point,” Jennings wrote. “ORR needs arm twisted.”

Albence’s concerns reached the Border Patrol, the part of CBP that carried out most of the separations and transported parents to criminal court.

Sandi Goldhamer, a CBP official, said in a 10:04 p.m. email among Border Patrol officials that night that officials should “cease the reunification process” in border stations.

“If you are concerned with appearances than (sic) do not return the family unit adult back to the CPC,” she said, apparently referring to a central processing center in the Rio Grande Valley. She said they should take adults to an alternate holding facility, with a handout to help them reunite with their children, and have ICE pick them up.

Around 2 a.m. the next day, Albence messaged CBP Commissioner Kevin McAleenan, his deputy, Ron Vitiello, and acting ICE director Homan that it appeared that ORR was refusing to take children whose parents had returned from court in Texas. Officials heard the same in Arizona.

“This obviously undermines the entire effort and the Dept is going to look completely ridiculous if we go through the effort of prosecuting only to send them to a FRC (family residential center) and out the door,” he wrote.

Trump ended the policy amid international outcry on June 20, and days later, Albence said in an internal email that HHS would want to know what ICE could do “to facilitate immediate reunification” of the families. Albence said “that wasn’t going to happen unless we are directed by the Dept to do so.”

“We are moving forward w reunification only for the purposes of removal,” he said.

A few days later, a federal judge in San Diego ordered the government to reunite the families.

Nick Miroff contributed to this report.