The Daily - How Separating Migrant Families Became U.S. Policy

Episode Date: June 19, 2018

President Trump has blamed Democrats for his administration’s practice of taking children from their parents at the border. Why is one of his top aides, Stephen Miller, claiming credit? Guest: Julie Hirschfeld Davis, who covers the White House and immigration for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

Hi everyone, it's Michael. There's been some questions about our decision not to run excerpts from a Times interview with Stephen Miller, the White House advisor, as we had planned to do in this episode. Some further context. My colleagues Julie Davis and Michael Scheer interviewed Miller as part of their reporting for a print story on the White House's current practice of separating parents and children at the border. They had recorded it for fact-checking purposes, and it was only after the story was published, with on-the-record quotes from Miller, that the Daily requested to air the audio as part of an interview with Julie about her reporting. The White House objected because

the terms of the original interview had not included its use on The Daily. We recognized that the ground rules for the interview were not clear, and so we made a decision not to use the audio. There was much discussion about this decision, and we took it very seriously. From The New York Times, I'm Michael Barbaro. This is The Daily. Today, President Trump continues to blame Democrats for his administration's practice of separating parents and children at the border. So why is one of his top aides, Stephen Miller, claiming credit? It's Tuesday, June 19th.

I have put in place a zero-tolerance policy for illegal entry on our southwest border. If you cross the southwest border unlawfully, then we will prosecute you. It's that simple. Children are being separated from their parents at the border at an accelerated rate because of a new zero tolerance policy being implemented by the Trump administration. The Associated Press reports between April 19th and May 31st, nearly 2,000 children were separated from their parents. The White House says the goal is to deter illegal border crossings, but Democrats say

family separation is inhumane and want it to end. Julie, you talked recently with Stephen Miller, President Trump's domestic policy advisor, about this very controversial situation playing out at the border with parents and children being separated. And we were going to hear that audio on the show today. Right. Julie Davis covers the White House and immigration for The Times. Julie Davis covers the White House and immigration for The Times. We were, until I heard from the White House earlier today,

that they were not at all comfortable with us using that audio because when I went into the West Wing to interview Stephen Miller with Michael Shearer, my colleague here at The Times, the purpose was we were doing a big deep dive story on this family separation practice that's broken out all over the country. And we didn't talk about any sort of alternative uses for the interview. And when they found out that his voice was actually going to be on a podcast discussing this, they were not happy about it. So they asked us not to use it. All right. So instead of hearing that audio, we're going to talk to you about the conversation you had with Stephen Miller and his thinking around this practice.

So how does Miller talk about how the immigration system used to work? He essentially talks about it as an open borders approach where there was no enforcement, essentially, of the immigration laws. There is obviously a law against crossing the border unlawfully, but in the past, it's often been charged as a civil infraction. So you're taken into custody by immigration authorities. If you claim later on that you were seeking asylum, you are held for a time and then given a court date after which you have to show up and plead your case as an asylum claimant. Others are put in immigration detention. But if you were traveling with a child, you were treated differently. How so? First of all, there was a settlement decree in 1997 known

as Flores that essentially said that if an unaccompanied child was apprehended at the border, they could not be held in immigration detention indefinitely. In fact, they couldn't be held for a very long period of time at all. And the time period that was decided upon was about 20 days. The immigration crisis is intensifying. President Obama today requesting emergency funding, mostly to keep undocumented children from coming here to the United States and to help send them back.

The spike has come from Central America, El Salvador, Guatemala, and Honduras. This is where immigration officials are moving more than a thousand undocumented children to this makeshift detention center this weekend. More than 220 immigrants have died crossing the U.S.-Mexico border since October, and more than 52,000 unaccompanied kids have been detained in that same time period. At the height of the Central American migration crisis under Barack Obama, they were seeing a huge amount of families arriving at the border, and they were holding them in immigration detention for quite a long period of time.

The Obama administration is facing broad criticism for its handling of the surge of undocumented immigrants crossing the border. Immigration lawyers are once again suing the Obama administration over its practice of immigrant family detention. They were sued and a federal judge decided in 2016 that this 20-day time limit should apply to not just unaccompanied immigrant children, but immigrant children who were accompanied by their parents, in other words, families. So essentially, if you are going to hold a family together, you can't hold them for more than 20 days in immigration detention. And so essentially what you had is a flood of people arriving at the border, believing that they could make an asylum claim,

they would be taken into custody temporarily, and they would be given a time when they could appear back to sort of plead their case. And in the meantime, they would be released into the interior of the country. And this is what the president and Stephen Miller refer to as catch and release. And you're supposed to show up for your day before an immigration judge, but in reality, many people never do. So essentially, that is the major objection here, if you're asking the Trump administration, that effectively there was no penalty for crossing the border illegally

because people never paid a price and they were allowed into the country. So are most of them crossing the border to seek asylum or are they trying to sneak undetected into the country and just being caught? Some people, of course, are trying to sneak across the border without being caught. But the vast majority of people that we're talking about

are at least saying that they want to claim asylum. They're saying that they have a credible fear of returning to their country because of gang violence or they'll be persecuted or for some other reason. Okay. And in all those situations, whether they're seeking asylum or not, under the Obama administration, these families would stay together. Right. So by the strict

letter of the law, crossing the border illegally is a criminal act on the books. But in the past, before President Trump, it often wasn't prosecuted as a criminal act. And the result of that was that by prosecuting it as a civil violation, many people were released into the U.S. and they effectively succeeded in crossing the border into the U.S. That's right. And the problem was compounded by the fact that there is a huge backlog, a years-long backlog of asylum claims. And so essentially, it would be years before they ever got around to even determining whether you deserved to be granted asylum. And the Trump White House, for a whole variety of reasons, unintended consequences of legislation and court rulings and some decisions made by past administrations, it is now currently in the interest of someone crossing the border to come with children, right? And that's, to Stephen Miller, a problem if you're trying to crack down on undocumented immigration. Miller a problem if you're trying to crack down on undocumented immigration? That's right. And I mean, they'll talk about how smugglers are bad people,

and they will do what they need to do to get people across. And if that means having them cross with somebody that's posing as their child, that's certainly not outside the realm of possibility, and it has happened. But yeah, they also talk about the fact that, you know, you can't have a whole class of people for any crime or any offense that is just simply exempted from the laws by dint of the fact that they're with a child. At one point in our interview, he said, imagine if in the context of domestic law, if you said that the speed limit doesn't apply to you if you have a child in the backseat. Can you imagine what the consequences of that would be? And one of the things he says is a lot more child endangerment. And that is, in fact, his argument that you're putting children in danger because you're essentially encouraging people to use them as a means to get across the border, which is a very dangerous trip. It's a very dangerous crossing. And then when they get into the country, certainly it could be a pretty dangerous

road ahead for them. So in his mind, this is a humane policy. I think he used the word humanitarian in his interview with you because it discourages people from taking a risky trip with children across the border or using someone else's children as masks to legally get into the country. Right. He says ours is the humanitarian policy. And I think that's actually for two reasons. One is you're essentially trying to discourage people from putting children in a dangerous situation or using them as a means of breaking the law. But then in another sense, this is where Stephen Miller and the president make the sort of pivot to the broader

immigration system, which they say essentially is so lax and so insufficiently enforced that you're essentially endangering American citizens to potential crimes by illegal border crossers. They talk about the fact that there's family separation when you take a child away from someone who is unlawfully crossed the border, but there's also permanent family separation when an illegal immigrant murders an American citizen. a wall, including make it more difficult to be eligible for asylum in this country, including cutting legal immigration and all of these other things that have really nothing to do with the current crisis. So this is also an act of humanitarianism, according to Stephen Miller, on behalf of the American people. Indeed.

So this does seem like a genuinely challenging problem for the federal government. Crossing the border is an illegal act, but so many people crossing come with children and you can't jail children. And you can't hold families for long periods of time. And there's this tremendous administrative backlog. So it does feel like an impossible situation. Well, it is an impossible situation, and that's why administrations have struggled with this for so long. When George W. Bush first implemented a 100% prosecution policy, there was quite a bit of discussion around what do you do with families. But ultimately, it was decided that, you know, there was no way you're going to take a child away from their parent. You're going to keep them together and there's going to be a different path.

But it sounds like you're saying it was considered a policy of separating families and children. It's always been on the table. There's no question that it's always been on the table. My colleague, Michael Scheer, talked to the domestic policy advisor under Obama, Cecilia Munoz, and she said, you know, we basically talked about it for about five minutes and thought, well, we just can't do that. That's not who we are. But clearly, presidents have understood that this is an option, that, you know, it would make things a lot simpler and more clear cut.

But no one was really willing to go there, including, by the way, the Trump administration. John Kelly, then the Homeland Security Secretary, now the White House Chief of Staff, said publicly in an interview early last year that he was considering doing this in order to deter people from making the dangerous journey from Central America to the U.S. border. And there was a ton of controversy. A bunch of senators confronted him about it on Capitol Hill. And he ultimately said, no, no, no, we're not going to do that. But clearly, debate inside the White House and the administration continued about it. And people recognized that, you know, there was something effective about the idea of a black and white policy that, you know, we prosecute everybody and everybody gets treated the same way and to heck with the consequences.

We'll be right back. Julie, what does that actually look like on the ground once it's deployed? It's pretty grim. I mean, basically what's happening is you have people coming across and they're being arrested and taken, in most cases, to federal prisons. And their children are being taken into immigration detention at first. You've seen some of the pictures of these facilities.

They're, in one case, in a converted Walmart. You know, they have cordoned off areas, oftentimes with fencing. They have cots or mattresses to sleep on. They have space blankets in many cases. And it's sort of like a mini cross between a

prison and a daycare center, I guess. And they're held there. And then, you know, ultimately, the idea is that the government has to transfer them to the least restrictive setting as soon as possible. And in many cases, they're trying to place them with foster parents, either family members who are legally in the United States who they can go stay with, or people who are willing to take them in until they can be reunited with their parents. Hmm. So there are hundreds of children in this country

who might enter into foster care as a result of this, even though their parents are very much alive and very much here. That's right. And one of the issues here has been, you know, how people can find where their children have gone. I mean, this is, we were told by the Department of Homeland Security last week that in a six-week period, about 2,000 children have been separated from families. So if you think of the scale of trying to find where each child has been sent and get them back

to their parents, their parents, by the way, are in deportation proceedings, so they may be deported. Theoretically, what the Department of Homeland Security has said is, and the Department of Health and Human Services, which is in charge of holding the children, is that the child will be reunited with the parent as soon as their immigration case is finished. That is theoretically what happens. But in practice, what we're hearing is that it's pretty difficult to make that happen. And people are having trouble finding their kids. And it's not totally clear that they have a process in place to efficiently reunite the children with their parents,

at least not in a timely way. If the idea of this, and according to Miller, this is the idea of it, was to clean up our immigration system, this does not sound simpler. It's not simpler at all. And not only is it not simpler for the immigration system, but it's also much more complicated and burdensome for the Justice Department, which essentially now has thousands and thousands more criminal cases to prosecute every day because of the decision to treat all of these people crossing the border as criminal charges. So they then have to process those people and they have to go before a judge. And then there's the additional challenge of the fact that now,

because the border stations are so clogged, we've heard reports of people not being able to even claim asylum. So theoretically, what you're supposed to do if you want to claim asylum is show up at a port of entry and say, I fear for my life. I have a credible fear of returning to my country. And that is something that under the U.S. law, everyone is supposed to be able to do. But people have not been able to do that in recent months. And so you have people who are showing up in between ports of entry and being charged with a crime, even though they're saying, I'm fleeing persecution in my country. Even the people who are showing up at ports of entry are having trouble claiming asylum. And that just shows you what strain the system is under right now. I'm curious, Julie, if the goal of this whole approach is to keep these families out of the country,

why not just deal with the administrative backlog that you mentioned earlier so that these families would be processed within 20 days and not have to be released into the U.S.? Wouldn't that be simpler than this very elaborate and emotionally tormented process that's now underway? Well, it would. And, you know, the administration talks wistfully about being able to do that. But they also say that they need changes to the law in order to make that a reality. So as long as it's as easy, they claim, as it is, to claim asylum, you will have a backlog because there will be so many people flooding the system. And they want to change the laws so that there are more people who are just inadmissible without even processing their claim, that they don't have a chance at all.

You heard Jeff Sessions a couple of weeks ago argue that domestic abuse is no longer going to be counted as a criteria for asylum claims. The asylum system is being abused to the detriment of the rule of law, sound public policy, public safety even, and to the detriment of people with just claims to asylum. So they are trying to get at this problem in a bunch of different ways, one of which is, you know, having more people processing the claims, another of which is saying, let's try to clamp down on the claims themselves by making it a lot harder to be eligible for asylum. Saying a few simple words, claiming a fear of return is now transforming a straightforward arrest for illegal entry and immediate return into a prolonged legal process where an alien may

be released from custody. They essentially believe that it is way too easy for people to come here and just kind of put their hands up and say, I have a credible fear. You have to let me in. just kind of put their hands up and say, I have a credible fear, you have to let me in. And so they're looking for different ways to limit people's ability to do that. And so changing the criteria for whether you can get asylum is one of them. But this zero tolerance, 100% prosecution policy also connects to that. Because if you're apprehended on the border connects to that because if you're apprehended on the border for unlawfully crossing and you say, I want to seek asylum, that goes second in line to prosecuting you for the crime of illegally crossing the border. So essentially, whereas other administrations have treated all of those people as asylum seekers, this administration is making that secondary to the crime of having illegally

crossed the border. So under previous presidents, those people have been treated first as asylum seekers, right? And now the Trump administration is treating them first as criminals. That's right. That's right. Outraged by the Trump administration's policy of taking migrant children away from their parents, protesters rallied in Los Angeles. Julie, do you think that the Trump administration predicted that there would be this outrage to this practice of separating parents from children at the border?

I don't think that they anticipated this at all. I think that they thought through the message they were sending and the theoretical merits of zero tolerance. And they didn't quite contemplate the level of outrage that it would spark when they started taking children away from parents. Our government has to do the right thing and stop separating us from our parents. I won't give up fighting for the right to stay with my dad. I am not asking for a favor. It is my right as a child to live in peace with my father. Families belong together. Do we think it's possible that Trump didn't quite understand what the result of zero tolerance would actually be?

That enforcing immigration law sounds good, but he didn't really know that the result would be separating parents from children. But Stephen Miller did understand that. I think that's entirely possible that he said, I want zero tolerance. And they said, great, we'll do zero tolerance. And they didn't get into the nitty gritty of, well, that means, you know, zero tolerance for infants and their mothers, zero tolerance for, you know, et cetera, et cetera. It is the case, though, that, you know, it's been pretty clear now for weeks what the logical end result of this has been. And, you know, contrary to what he says, that he needs the Democrats to

change the laws and he could tomorrow instruct the Department of Homeland Security to start making exceptions for parents traveling with minor children. But I do think that the president, although he doesn't like to take credit publicly for it, tends toward the Stephen Miller school of thought that, you know, this is a tough love thing. We need to get control of this system. If this is what it takes to do it, this is what it takes. And I would never want to predict whether he's going to pull back on this because I think that the level of outrage that we're seeing around the country is pretty extraordinary. But I do think that he sees the utility of this. And it's a debate that he relishes having. I mean, he will turn this on its head. He'll turn it upside down. He will blame it

on Democrats. He will say it's a matter of his opponents wanting open borders and to endanger the American people. And it's a contest between someone who wants to keep you safe, i.e. him, and people who don't want to keep you safe, i.e. the Democrats. It's about defining the terms of the debate in a way that's advantageous to him. So, yeah, if you want to have a debate with him about is it morally a good thing to separate parents from their children at the border, he's not going to engage in that. But if he can turn it into, is it tough but necessary to do so in order to protect the American people from brutal gangs and criminals, I think that's ground he's pretty comfortable on. Julie, thank you very much.

Thank you, Michael. On Monday, the United Nations' top human rights official, Zayd Rod Al-Hussein, called for an immediate end to the practice of separating undocumented immigrant children from their parents. The thought that any state would seek to deter parents by inflicting such abuse on children is unconscionable. Here's what else you need to another day. If I might, I just wanted to make a brief statement on immigration and what's happening. if they make a brief statement on immigration and what's happening. On Monday, at a meeting of the National Space Council, President Trump opened by doubling down on his claim that Democrats are responsible for separating children from their parents at the border,

before making an unrelated announcement. My administration is reclaiming America's heritage as the world's greatest space-faring nation. The essence of the American character is to explore new horizons and to tame new frontiers. The president called for the creation of a sixth branch of the U.S. Armed Forces devoted to outer space. forces devoted to outer space. We are going to have the Air Force and we are going to have the Space Force, separate but equal. It is going to be something. The Pentagon, including Trump's own Secretary of Defense, James Mattis, previously opposed the idea of a new military branch focused on space, calling it costly and unnecessary.

When it comes to defending America, it is not enough to merely have an American presence in space. We must have American dominance in space. So important. That's it for The Daily. I'm Michael Barbaro. Special thanks to ProPublica for letting us use the audio from inside a detention center. See you tomorrow.