My Response to DHS Secretary Kirstjen Nielsen’s Press Briefing Today On Zero-Tolerance Policy

I watched the White House Press Briefing today with Department of Homeland Security Secretary Kirstjen Nielsen. I took notes as best as I could so I could later respond, while furiously posting comments online, and clicking the angry face emoji 😡 every five seconds. I found Nielsen to be very defensive and angry. This could have been because she knew she was lying, but my instincts told me that it was more likely because she believes she's correct and is outraged to be so misunderstood. Quite likely it was a combination of the two, and perhaps she's just furious that she's in this place to begin with. Who really knows. But her general disdain and disregard for these traumatized families was apparent to me, and I kept wondering if she had ever gone through hardship, because regardless of what one's thoughts are on border protection, all of our hearts should be breaking in half.

What I do know though is that most of the information Nielson shared was dishonest at worst, and misleading at best. The following is my response to many of her assertions, which represents a combination of areas I was already familiar with, but also some new research I did today to fill in the blanks. I then did my best to connect the dots. One thing to keep in mind is that this story is evolving, thus the various analyses you may be reading online, will likely be evolving as well as experts and journalists attempt to figure out what the administration's true motives are for their "zero-tolerance" policy. 

‘There are glaring loopholes in U.S. asylum-seeking policy’ – FALSE.

While no legislation is perfect, and situations arise that require legislative amendments to meet new and changing social dynamics, the majority of immigration experts agree that there are no “glaring loopholes” in our political asylum legislation. Rather, what Trump and current Secretary of DHS Secretary Kirstjen Nielsen refer to as “loopholes” are purposeful humanitarian aspects of the legislation that had bi-partisan support. For instance, while unaccompanied minors from Mexico and Canada can be sent back to their countries of origin more easily, unaccompanied minors from other countries, such as Guatemala, Honduras, and El Salvador cannot, because we don’t share a border, and also because of fears of potential trafficking (see below for what they’re describing as “loopholes”).  Click HERE for a good assessment of the "legal loophole" claim

‘Legislation passed under the Bush Administration in 2008 is the cause of this problem and President Trump inherited the problem, and is just the first president to come forward and try to deal with the problem’: FALSE.

The law Nielsen referred to is the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 signed into law by Bush, with bi-partisan support and a strong push by Evangelical leaders who were working to combat human trafficking.  

This is a good bill and provided new protections to trafficking victims, including unaccompanied minors entering the country (without a parent). To ensure that these children were not being trafficked, rather than immediately sending them back to their countries of origin, the law requires that they have an immigration hearing with an advocate.

They are also granted the legal right to apply for political asylum. Unaccompanied minors (referred to as “unaccompanied alien children” in the legislation) are then transferred to the Department of Health and Human Services (DHHS) within 72 hours, and are required to be placed “in the least restrictive setting that is in the best interest of the child.”

Unaccompanied minors are then placed either with a family member, a residential center or foster care. While the intention of this law was good, there has been a significant increase in unaccompanied minors coming across the border since 2008, which may constitute a humanitarian crisis. Not because of fraud or poor parents, but because of social conditions (violence, etc.) in their home countries. Here is the issue:

Many (not all) Republicans appear to want to send these kids back immediately, regardless of the risk, and Democrats as a whole believe that the law already provides enough flexibility to respond accordingly in times of crisis.

The loophole Trump and Nielson are referring to is actually one of the humanitarian components of this legislation. But this is vitally important: **** the children being separated from their parents currently, under Trump’s “zero tolerance” policy are not unaccompanied minors, but are being legally treated as such if the parents cannot provide immediate proof of parentage**** (see comments below about birth registrations).
Here is the TIP Act. And here's a good article describing the background of the zero-tolerance policy.

‘The only families who are being separated are those who cannot provide proof of parentage and are suspected of smuggling children’: HIGHLY MISLEADING.

This is so important! If you don't remember anything else about this post, please remember this. Approximately one-fourth to one-third of all children under the age of 5 worldwide have not had their births legally registered, meaning their country of birth has not issued a legal birth certificate to the parents. Meaning that the parents have no legal proof that their children are their own.

In many countries, legal documentation of family relationships, such as marriage and births, are unavailable. Sometimes this is because poor, indigenous families live in the countryside, far from infrastructure, and in other cases, birth registrations are denied to certain populations because it is easier to commit human rights violations against them.

How can you verify deaths if there is no legal evidence of the births in the first place? This is the stuff Guatemala’s “invisible war” was made of—causing the disappearance of entire indigenous villages that lack legal documentation of their existence. In fact, the lack of birth registration, and in some cases the outright denial of birth certificates, is considered a human rights violation according to the United Nations.

Thus it is highly misleading and disingenuous for Nielson to claim that only parents who cannot provide legal proof of parentage are having their children removed, since that would likely include most, if not all of these migrant parents seeking refuge in our country, since they’re coming from countries that likely have not provided birth registration. 
Here's the United Nations' statement on birth registration. 

‘Families were separated under prior administrations’: MOSTLY FALSE.

The policy to separate parents and children is new and was instituted on 4/6/2018. It was the “brainchild” of John Kelly and Stephen Miller to serve as a deterrent for undocumented immigration and political asylum-seeking, and some allege to be used as a political bargaining chip in the ongoing immigration reform debates. The policy was approved by Trump, and adopted by Sessions, and described in a policy statement dated April 6, 2018.

Prior administrations detained migrant families, but didn’t have a practice of forcibly separating parents from their children unless the adults were deemed unfit. While there may be no specific policy aimed at separating children from their parents, the administration no doubt knew that the decision to manage undocumented immigration (and apparently political asylum) through a criminal proceeding, rather than through a civil administrative proceeding would trigger this process of separating parents from their children.

Additionally, it is wholly unnecessary to detain parents for a misdemeanor charge, which is the level of crime for crossing the border without documentation. Additionally, it is not illegal to seek political asylum. 

‘Parents must be detained if they break the law, Just as they would be anywhere else in the United States’: FALSE.

The charge of misdemeanor does not require detainment.

‘No one is being turned away from US Ports of Entry’: FALSE.

There are numerous reports of political asylum-seekers requesting protection from US Ports of Entry and being turned away. Here are two articles with witness testimony.

Click HERE for a New York Times article.  

Click HERE for a Washington Post article.

‘MS-13 gang members are flooding our border, and that’s who we’re trying to stop to protect the children’: FALSE.

The MS-13 gang was created in the United States in the 1980s, not Central America. The gang grew out of Los Angeles neighborhoods with higher numbers of civil war refugees from El Salvador, Guatemala and Nicaragua. There are an estimated 10,000 or less MS-13 gang members living in the United States (a 2006 stat), 70% of who are US citizens, not immigrants. For instance, a May 2017 report on an ICE arrest found that of the 1378 individuals arrested, 933 were US citizens. Here's a report on MS-13. 

The MS-13 gang constitutes approximately 1% of all gang members living in the United States, but they are a real threat, particularly to unaccompanied minors fleeing their countries because of violence and persecution. Since unaccompanied minors are a target for MS-13 gang members, the Trump administration quite likely has dramatically increased the vulnerability of the children who they’ve taken from their parents and legally deemed “unaccompanied alien children” because their parents did not have legal proof of their relationship. Here's another good assessment.

Additionally, there were 68,541 unaccompanied minors apprehended at the border in 2014, and U.S. Border Patrol confirmed that 159 of them were suspected gang affiliations, and of those, 56 were suspected or confirmed to be affiliated with MS-13. 45,400 unaccompanied minors, on average, have been apprehended per year from 2012 to 2017.
Source: https://www.cbp.gov/…/southwest-border-unaccompanie…/fy-2014

‘Political asylum up 349%’: PARTIALLY TRUE, BUT MISLEADING.

Percentages are meaningless without the numbers, and statistics can be manipulated. I could not get the 349% number, but political asylum applications from Central America have increased, but not because of legal loopholes, rather, because of a spike in violence in those countries, and a dramatic increase in the desperation of families being targeted by gang violence. First, it’s important not to confuse political asylum applicants with the UN refugees, although both are granted refugee status, if accepted into the country.

Basically, there are two primary ways someone can gain refugee status in the US: 1) coming into the US and then applying for political asylum (either by presenting themselves to a US Port of Authority or overstaying a visa ) and 2) being granted refugee status in another country by the UN (UNHCR) when individuals cross an international border in response to persecution and/or conflict. Trump dramatically lowered the annual UNHCR refugee threshold from about 80,000 to 21,000 (dramatically lower than both Bush and Obama). The majority of refugees coming from the UNHCR program are from Syria, Afghanistan and South Sudan, followed by Asia (Burmese and Bhutanese).

With regard to the first option (people coming into the country first, and applying for political asylum), overall there has been a sharp decline in political asylum applications being granted in the last 15 years, but again, an increase in applications, particularly from what’s called the “Northern Triangle” in Central America (Honduras, Guatemala, El Salvador) (see below). 

First, the numbers. In 2000 there were 32,514 people who were granted political asylum, compared to 20,455 in 2016: Source:  https://www.dhs.gov/immigration-statisti…/yearbook/…/table16

Here is the breakdown on where the asylees are coming from (2016): 
22% China
11% El Salvador
10% Guatamala
7% Honduras
5% Mexico
4% Egypt
4% Syria
3% Iraq
2% Nepal
2% Ethiopia
Source: www.americanimmigrationcouncil.org/research/asylum-united-states

So now, about the increase in applications (i.e., screenings). There were 115,399 affirmative asylum applications filed with USCIS in 2016, which is an increase of 39% from the prior year, and a 100% increase since 2014, but still far lower than the all-time high of 144,000 applications filed in 1995. The numbers fluctuate based on what’s happening in the world and who is fleeing due to a credible fear of persecution (based on race, religion, nationality, membership in a particular social group, or political opinion). The country-of-origin with the largest increase in applications is actually China (16,494 applications, a 19% increase compared to 2015), followed by Egypt, and then Venezuela (14,773 applications, a 161% increase compared to 2015).

The number of affirmative asylum applications by migrants from Central America’s Northern Triangle Countries (El Salvador, Guatemala, and Honduras) is the topic of concern and those applications have risen 25% between 2016 and 2017, but in the past three years the number of applications has gone from 7,723 to 25,80. The number of denials has increased as well though, thus most of these cases of political asylum have been denied, particularly for those from Latin America. Source: 
https://www.dhs.gov/…/publicati…/Refugees_Asylees_2016_0.pdf

So first, let’s keep the numbers in mind, since statistics can be misleading. Among the total number of asylum applications of 115,399 received in 2016, most are from China, and only about 25,000 applications are from the Northern Triangle (Guatemala, El Salvador and Honduras). And while the total number of migrants being arrested at the US-Mexico border is the lowest since the early 70s (46 year low), the reason for the increase in asylum applications from people in Central America is due to violence, not legal loopholes.

Basically, desperate parents in Guatemala, El Salvador and Honduras are either requesting protection from US border security authorities, or they’re sending their children with the hope of keeping them alive (kind of like when desperate parents threw their children over the fence during the Viet Nam war). Most political asylum seekers from Central America are women and children, because these are the populations targeted by gangs in their home countries. These are desperate people needing help. They often arrive with nothing but the clothes on their backs, and often without legal identification.

I believe that the Trump administration is waging war on all forms of immigration, but right now, he seems focused on political asylum from south of the border. For instance, according to government policy under Bush and Obama administrations, once a political asylum-seeker in detention passes the “credible fear” test during an immigration interview, they are released.

They then proceed through the political asylum process, which takes about a year. If their application is denied, they’re detained and returned to their country of origin. Under the Trump administration though, this policy changed and political asylum-seekers are continuing to be detained even after they’ve passed the credible fear interview. For instance, recently “in the El Paso sector [from February to September of 2017] 349 requests for release from detention were made, and all 349 of them were denied.”  Source: www.thenation.com/article/ice-is-sending-a-message-to-the-worlds-asylum-seekers-the-us-is-no-place-of-refuge/

So basically, there is violence and horrific persecution in Central America, targeting primarily women and children. These desperate people are coming to the US and requesting help, and the Trump policy response appears to be to create a deterrent by separating them from their children, likely forever, because most of these desperate parents will never be able to provide legal proof of their familial relationship (see my analysis on unaccompanied minors and the 2008 Trafficking in Persons (TIP) legislation and birth registrations above).  Fact sheet on Asylum-Seekers: reliefweb.int/report/united-states-america/fact-sheet-us-immigration-and-central-american-asylum-seekers

‘There is no policy to separate parents from their children when they are seeking political asylum’: FALSE.

Richard Hudson, the Deputy Chief of Operations Program of US Customs and Border Protection, testified before a Senate Judiciary committee hearing on May 23, 2018 and stated that “hundreds of children [are being] separated from their parents every week.” This admission is in contradiction to Nielson’s and Attorney General Jeff Sessions’ assertion that only families crossing the border illegally are facing separation. Families seeking asylum and presenting themselves at a US Port of Entry are being separated as well: https://www.judiciary.senate.gov/…/tvpra-and-exploited-loop… (video) https://www.judiciary.senate.gov/…/05-23-18%20Hudson%20Test… (transcript)

‘People are flooding the our southern border’: FALSE.

This has been a constant rallying cry of President Trump since he was running for president, and there is no evidence to back up his claim. In fact, the opposite appears to be true. As of 2016 (most recent statistics available) there were as estimated 11.3 million unauthorized immigrants living in the United States, which is a significant decrease from 12.2 million in 2005. Among all unauthorized immigrants in 2014, 5.8 million are Mexican, down from 6.4 million in 2009.

The balance of unauthorized immigrants are primarily from Asia and sub-Saharan Africa. The number of unauthorized immigrants from Mexico has been steadily declining since 2009, and 78% of all unauthorized immigrants have lived in the U.S. over a decade (avg 13.6 years). Among Mexican unauthorized immigrants, only 7% have lived in the U.S. less than 5 years, and the majority (estimate 87%) were recruited to the US directly from their home communities, by the US agricultural and meat-processing industries (during the “Chicken Boom”).

In other words, the majority of undocumented immigrants currently in the United States have been here for years, and are not recent migrants. While there has been an increase in political asylum-seekers and unaccompanied children (typically teens), our southern border is NOT being flooded. 

Source on illegal immigration from Mexico: www.pewresearch.org/fact-tank/2017/03/02/what-we-know-about-illegal-immigration-from-mexico/

Source on DHS 2011 stats: www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf

Source on DHS 2017 stats: www.dhs.gov/immigration-statistics/special-reports/legal-immigration

Summary: There is a humanitarian crisis occurring in the Northern Triangle of Central America that has caused an increase in political asylum-seekers requesting protection from the United States, and an increase in unaccompanied minors. The people presenting themselves at US Ports of Entry are poor, desperate, and traumatized.

We may not be able to help all of them, but we can help some of them, both in their home countries and here. It’s unclear to me whether Trump is waging war against all migrants (undocumented economic migrants, UNHCR refugees, and political asylum-seekers), or if the current policy is focusing more on political asylum-seekers entering through a southern US Port of Entry (particularly unaccompanied minors).

​But what does seem clear to me is that the Trump administration has responded to this humanitarian crisis by taking a hostile stance toward the victims, and rather than responding with compassion (even compassion with some limits), they are dramatically exaggerating the problem and conflating numerous dynamics to reduce sympathy:

Making it sound as though Central Americans make up the bulk of immigrants and asylum-seekers in the US (they don’t); implying that the majority of children being brought into the country are being trafficked by MS-13 gangs (they aren’t), scapegoating the parents by referencing them with disdain for attempting to come into the country with their children, calling them criminals, etc. for bringing their children into our country (far from it).