WASHINGTON — Trump administration officials weighed speeding up the deportation of migrant children by denying them their legal right to asylum hearings after separating them from their parents, according to comments on a late 2017 draft of what became the administration's family separation policy obtained by NBC News.
The draft also shows officials wanted to specifically target parents in migrant families for increased prosecutions, contradicting the administration's previous statements. In June, Department of Homeland Security Secretary Kirstjen Nielsen said the administration did "not have a policy of separating families at the border" but was simply enforcing existing law.
The authors noted that the "increase in prosecutions would be reported by the media and it would have a substantial deterrent effect."
Click here to read the draft and comments
The draft plan was provided to NBC News by the office of Sen. Jeff Merkley, D.-Ore., which says it was leaked by a government whistleblower.
In the draft memo, called "Policy Options to Respond to Border Surge of Illegal Immigration" and dated Dec. 16, 2017, officials from the Departments of Justice and Homeland Security lay out a blueprint of options, some of which were later implemented and others that have not yet been put into effect.
At the time, the number of undocumented immigrants seeking to cross the southern border was near historic monthly lows: 40,519 in December 2017, compared to 58,379 the same month the year prior.
The document was circulated between high level officials at DHS and the Justice Department, at least one of whom was instrumental in writing the first iteration of the administration's travel ban.
The plan, and the comments written in the margins, provide a window into the policy discussion thinking at the time, how far officials were willing to go to deter families seeking asylum and what they may still be considering.
In one comment, the Justice Department official suggests that Customs and Border Protection could see that children who have been separated from their parents would be denied an asylum hearing before an immigration judge, which is typically awarded to children who arrive at the border alone.
Instead, the entire family would be given an order of "expedited removal" and then separated, placing the child in the care of HHS in U.S. Marshall's custody while both await deportation.
"If CBP issues an ER [expedited removal] for the entire family unit, places the parents in the custody of the U.S. Marshal, and then places the minors with HHS, it would seem that DHS could work with HHS to actually repatriate [deport] the minors then," the official wrote.
"It would take coordination with the home countries, of course, but that doesn't seem like too much of a cost to pay compared to the status quo."
It is unclear from the official's comment whether the government planned on reunifying children with their parents before they were deported.
"It appears that they wanted to have it both ways — to separate children from their parents but deny them the full protections generally awarded to unaccompanied children," said Lee Gelernt, a lawyer for the American Civil Liberties Union who led the class action suit on behalf of migrant parents who had been separated from their children.
A DHS official told NBC News on the condition of anonymity because the department does not comment on pre-decisional documents that the draft's authors' intent was to enable agencies to reunify families after they were separated for prosecution.
But the draft and comments do not mention plans to reunify.
The Inspector General for Health and Human Services released a report on Thursday that said "thousands" of children were separated under the Trump administration during an influx in separations that began in the summer of 2017, before the zero tolerance policy. Whether those children were reunited with their parents is unknown, the report said.
The Department of Homeland Security disputed the "thousands" reported by the HHS Inspector General, claiming the inspector general did not have evidence to back up the claim. According to DHS statistics, in fiscal year 2017, the border patrol separated 1,065, 46 due to fraud and 1,109 due to medical or security concerns.
The December 2017 draft memo states that Customs and Border Protection is "currently executing the [separation policy] on a limited basis in the El Paso sector."
In a statement, DHS Spokeswoman Katie Waldman said, "The Trump administration has made clear that all legal options are on the table to enforce the rule of law, rein in mass unchecked illegal immigration, and defend our borders. In December of 2017, we saw the number of apprehensions increasing as a result of the Flores Settlement Agreement, the Trafficking Victims Protection Act, and a lack of physical barrier on the Southern Border."
"In part we were predicting — and trying to prevent — the exact humanitarian and security crisis we are confronted by now," said Waldman. "It would be malpractice to not seriously examine every single avenue to gain operational control of the border and ensure that those who are entering our country have a legal right to be here."
The Justice Department referred questions to DHS.
Officials were aware of potential backlog of children
When the administration began separating immigrant families under the "zero tolerance" policy in May 2018, it held children in the custody of HHS until they could be placed with a sponsor to await an asylum hearing. Zero tolerance never placed children in expedited removal or included systematically deporting them without their parents. Trump reversed the policy in an executive order on June 20, 2018.
One policy that was discussed but not implemented from the draft memo included limiting protections for migrant children who were victims of abuse or neglect.
The draft's authors suggested targeting "potential abuses" in the Special Immigrant Juveniles program, which provides green cards for immigrant children who have been abused, abandoned or neglected by a parent. The Justice Department official notes in a comment that children who have been abused by one parent are often living with the other parent when they qualify and that DHS Secretary Nielsen could refuse to award green cards in such cases.
It is not clear whether the administration rejected the idea of targeting children in the Special Immigrant Juveniles Program or whether the idea is still under consideration.
Other policies discussed in the draft, however, did materialize. For example, HHS adopted a policy that would require anyone in a household who agreed to sponsor an unaccompanied migrant child to undergo an extensive background check. Publicly, DHS and HHS said that this was to ensure the safety of children. But the draft shows administrators knew the potential for creating a backlog of children in migrant detention, which later became reality and led to the creation of the Tornillo tent city last year.
"There would be a short term impact on HHS where sponsors may not take custody of their children in HHS facilities, requiring HHS to keep the UACs [unaccompanied children] in custody longer," the draft said.
The official commenting in the margins of the draft noted, "I would suggest referring sponsors for criminal prosecution under 1324 if information indicates the sponsor facilitated the travel of the minor into the United States."
The Justice Department has increased its criminal prosecutions of child smugglers under the Trump administration, but it does not prosecute every parent who has paid for their child to be brought to the United States.
Also, the draft outlined the administration's plan to keep asylum seekers in Mexico. Officials from the administration are currently in negotiations with Mexico to finalize such a deal, forcing all asylum seekers to wait in Mexico until a judge could adjudicate their claims, which could take months or even years due to a backlog in the courts.
"There are litigation risks associated with this proposal, as it would implicate refugee treaties and international law," the draft said. In public testimony, Nielsen has told Congress that the policy is legal.
The officials also weighed "mandatory detention" of asylum seekers "for the duration of the adjudication of their asylum claims."
Releasing immigrants on bond while they wait months or years to see an asylum judge is an issue that has plagued both the Obama and Trump administrations. However, under the 1997 Flores court agreement, ICE is prohibited from holding children in detention for longer than 20 days. In September 2018, the administration announced that it was seeking to overturn the Flores agreement, but the policy has yet to go into effect. ICE is also limited in space to hold all immigrants awaiting asylum hearings.