Documents Detail ICE Campaign to Prosecute Migrant Parents as Smugglers

In the first months of Donald Trump’s presidency, senior administration and U.S. Immigration and Customs Enforcement officials embarked on an ambitious plan to deal with undocumented children crossing the border alone. Reasoning that most of the kids made their way into the U.S. only after their parents or family members paid a smuggler to facilitate the journey, the officials decided to cut the migration off at its source: by arresting the parents and family members.

By late April, top officials in the Trump government were already hinting at the emerging strategy in public appearances. Meanwhile, behind the scenes, ICE was drafting a detailed plan laying out how it would work. The end result was a document that, nearly two years later, offers new insight into an enforcement initiative that was the precursor to one of the darkest episodes of the Trump administration: the forced separation of thousands of migrant children from their parents on the U.S. border with Mexico.

Included among hundreds of pages of documents produced by ICE’s Homeland Security Investigations, or HSI, and shared with The Intercept, the release of ICE’s six-page “concept of operations” was the result of litigation the American Immigration Council — in collaboration with the Florence Immigrant and Refugee Rights Project, the National Immigrant Justice Center, Kids in Need of Defense, Women’s Refugee Commission, and Wilmer Cutler Pickering Hale and Dorr LLP — is engaged in to secure the release of materials detailing the creation, implementation, and fallout of family separation.

The now-released May 5, 2017 plan details the creation of a “90- to 120-day operation” targeting criminal organizations involved in the smuggling of unaccompanied children, “with an emphasis on the identification, investigation, and arrest of human smuggling facilitators, including, but not limited to, parents and family members.” Noting that the number of unaccompanied children coming into the country decreased from a high in 2014, the plan nonetheless justified itself on the assertion that smuggling organizations “have yet to be held accountable.”

“Since parents and sponsors have not been held accountable for their role, there is no deterrent for complying with U.S. immigration laws,” the plan said, adding that “approximately 90 percent” of unaccompanied minors “are eventually turned over to a family member.”

The initiative would be a collaboration between HSI, ICE’s powerful investigative wing, and Enforcement and Removal Operations, the side of ICE responsible for deportations. The plan additionally called for coordination with the Department of Justice and the Department of Health and Human Services, as well as multiphase strategies to deal with Congress and the press.

On the ground, the initiative involved interviewing unaccompanied children to determine whether their mothers or fathers, or other family members, could be arrested. Once arrest operations were set in motion, ICE would grant itself the authority to take into custody any deportable immigrants encountered along the way (what ICE refers to as “collateral arrests”).

In theory, the entire process — from the moment the child was first encountered to the time their family members were identified, surveilled, interviewed, and arrested — would take no more than 72 hours. ICE would gather several “metrics” as it pressed forward with the initiative, including the number of criminal, administrative, and collateral arrests made, and the value of any assets seized in the operations. The number of cases the DOJ declined to prosecute would also be tracked, as would the number of “gang members/affiliates” taken into custody.

ICE put an additional emphasis on tracking the effect the initiative would have on deterring migrants from making the journey north by monitoring “intelligence and open-source reporting identifying the changes in the alien’s perception of the ability to enter and remain in the United States illegally.”

From left, U.S. Border Patrol Acting Chief Carla Provost, Immigration and Customs Enforcement Executive Associate Director of Enforcement and Removal Operations Matthew Albence, commander of the U.S. Public Health Service Commissioned Corps Commander Jonathan White, and U.S. Justice Department Executive Office for Immigration Review Director James McHenry are sworn in before testifying to the Senate Judiciary Committee on July 31, 2018.

A “Surge Initiative”

By June 2017, the operation was underway. In a June 12 email, an HSI “Intelligence Research Specialist” described the initiative as a “high” priority coming from headquarters. The specialist noted that the initiative was unfolding in three phases.

During phase one, HSI investigators would determine the final destination of a migrant child in government custody, identify their parents or guardians, then “develop target folders of the parents/guardians.” During phase two, HSI agents would perform so-called knock and talk visits to the family’s home and “determine the identities of the parents/guardians.” The parents or guardians would be interviewed during phase three of the initiative, and “[i]f determined that the parents/guardians did pay smugglers to smuggle their children through the border, then HSI agents will develop warrants of prosecution.”

With the initiative designed to last no more than a few months, its eventual end came as a disappointment to some senior administration officials.

In a December 2017 memo later leaked to Sen. Jeff Merkley’s office by a government whistleblower, a central architect of the Trump administration’s most hard-line immigration policies named Gene Hamilton offered comments on a range of policy proposals to respond to the “surge of illegal immigration” at the border. Hamilton’s first comment, included in the margins of the memo, referenced “one option that isn’t listed here, but should be: prosecuting those in the United States who conspire or otherwise facilitate the illegal entry into the United States.” He pointed to a “fairly good initiative over the summer” that “got close to zero press.”

“Not enough cases were accepted for criminal prosecution,” Hamilton wrote. “We need a concerted six-month campaign — involving coordination between DHS, DOJ, and HHS. The whole of government needs to take a zero tolerance policy to the smuggling of minors into the United States (all aliens, of course, but especially minors).”

While the campaign to hunt down the parents of children fleeing some the most violent countries in the world did not generate the positive coverage Hamilton hoped for, it did attract attention. The same month that Hamilton lamented the end of the initiative, a coalition of immigrant rights organizations sent a letter to the heads of the Department of Homeland Security’s top oversight offices; they criticized a “surge initiative” in immigration enforcement targeting relatives of unaccompanied minors as an unconstitutional effort in which law enforcement was “using children as bait.” By the end of the summer, NPR confirmed, the initiative had resulted in more than 400 arrests.

The Trump administration’s efforts to deter undocumented families from coming to the U.S. by criminally prosecuting them did not end with the summer 2017 initiative. In the memo Hamilton marked up in December 2017, the prospect of separating arriving families — by requiring that all parents be criminally processed — was addressed explicitly. “[T]he increase in prosecutions would be reported by the media and it would have a substantial deterrent effect,” the memo said.

Five months later, in April 2018, the heads of three of the administration’s top immigration enforcement agencies recommended a policy of “zero tolerance” to former DHS Secretary Kirstjen Nielsen, acknowledging that the policy would lead to the separation of families.

One of those officials, Kevin McAleenan, is now acting director of DHS and scheduled to testify before Congress this week. The recommendation McAleenan provided — co-signed by the heads of ICE and U.S. Citizenship and Immigration Services — was included in a memo later obtained by Open the Government and Project on Government Oversight through a freedom of information request. On the same day the memo was sent, newly released emails now show HSI officials scrambling to find cases that would justify family separation to provide Nielsen ahead of an appearance before lawmakers.

“In preparation for S1’s hearing next week, I want to develop a good narrative (supported by facts and cases), on the separating issues,” the secretary’s chief of staff wrote at the time. “We need to think strategically of the arguments from the other side and position S1 accordingly.”

A year after family separation dominated the headlines, a pattern is emerging of primary source documents obtained through hard-fought freedom of information litigation detailing just how deliberate the policy of family separation was in its creation. Emily Creighton, deputy legal director at the American Immigration Council, said there’s a value in seeing actual government records that cannot be overstated. “I think primary source documents are increasingly important to the American public,” Creighton told The Intercept. “We’ve become skeptics of public statements that are made by public officials, for good reason, particularly in this context.”

Creighton explained that the documents her organization and its legal collaborators are now beginning to receive started with freedom of information requests filed before “zero tolerance” — the policy that required family separation — even became official. Immigrant rights stakeholders like AIC “have been unearthing documents that contradict the government’s public position,” Creighton said. “These government documents are what help tell the whole story.”

ICE did not respond to a request for comment.

As The Intercept reported Monday, in a story detailing how a private intelligence company working with DHS monitored more than 600 protests against family separation, the government has identified hundreds of thousands of documents responsive to the requests AIC and its partners have made. Getting access to those materials, however, has not been easy. “Their search capacities are limited,” Creighton said of the government agencies involved. “We have to work with them to find a way to get to a place where we’re actually receiving documents, and it’s been a real struggle in this case.”

“We live in a time when we are really rightly skeptical about how the government is messaging policies and lying to the public to explain appalling policies like family separation,” Creighton went on to say. “We have to continually remind ourselves that we have laws like the Freedom of Information Act that allow access to government documents that protect our right to know.”

Update: Monday, April 29, 2019

After publication, ICE provided the following statement:

ICE aims to disrupt and dismantle end-to-end the illicit pathways used by transnational criminal organizations and human smuggling facilitators. As such, ICE conducted a surge initiative focused on the identification and arrest of individuals involved in illicit human smuggling operations, to include sponsors who have paid criminal organizations to smuggle children into the United States. The risks associated with smuggling children into the U.S. present a constant humanitarian threat. The sponsors who have placed children directly into harm’s way by entrusting them to violent criminal organizations will be held accountable for their role in these conspiracies.

The numbers as of August 21, 2017 when the domestic enforcement phase of the initiative concluded:

• 443 administrative arrests
• 35 criminal arrests
• 38 prosecutions accepted on charges including alien smuggling and re-entry of removed aliens.

After the domestic enforcement phase of the initiative, the focus moved internationally to disrupting the transnational criminal organizations involved in human smuggling.