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Ex-DHS chief Nielsen claims 'there was no policy to separate families,' despite presiding over it

Kirstjen Nielsen signed a memo approving a policy of separating minors from migrant family members at the border.
Homeland Security Secretary Kirstjen Nielsen testifies before the House Judiciary Committee on Capitol Hill on Dec. 20, 2018.
Homeland Security Secretary Kirstjen Nielsen testifies before the House Judiciary Committee on Dec. 20, 2018.Susan Walsh / AP file

Kirstjen Nielsen, who presided over the Trump administration’s separation of thousands of migrant children from their parents as secretary of Homeland Security, claimed that a family separation policy did not exist.

“The truth is, there was no policy to separate families,” Nielsen told Anthony Scaramucci, another former Trump official, who had asked her to comment on the policy in a conversation streamed live as part of the SALT Conference.

Nielsen blamed the separations on the Zero Tolerance prosecution policy, publicly announced by then-Attorney General Jeff Sessions in May 2018, a program designed to prosecute anyone who entered the United States illegally, including between ports of entry on the southwest border.

Nielsen, however, signed a secretarial decision memo on May 5, 2018, in which she was asked to choose one of three options for slowing or stopping migration into the U.S. Of the three — which included options to gradually scale up prosecutions, to refer all single adults for prosecution, and to refer all adults including those arriving with children — Nielsen selected the third.

The option Nielsen signed on the memo clearly stated the result would make it “legally permissible to separate minors from adult family members.”

Nielsen signed the policy into existence despite the fact she was warned by then-DHS General Counsel John Mitnick that “a court could conclude that the separations are violative of the INA, Administrative Procedure Act, or the Fifth Amendment Due Process clause.”

Nielsen told Scaramucci “such a policy was requested of me, it was requested of General [John] Kelly as well when he was secretary, and we both dismissed it out of hand. There was no direction to separate families who legally entered the United States.”

In fact, families who legally entered the U.S. were separated during Nielsen’s tenure.

Ms. L, the Congolese woman who became the lead plaintiff in the class action lawsuit that ultimately resulted in the end of the Trump administration’s wide scale separations, did present at a legal port of entry, only to be separated in February 2018 by Customs and Border Protection agents claiming her daughter was not who she said she was. A DNA test later confirmed their relationship.