May 16, 2018

Harris Presses DHS Secretary on Separating Immigrant Families, Detention Conditions

Video of Harris’ First Round of Questioning

Video of Harris’ Second Round of Questioning

WASHINGTON, D.C. – Yesterday at a Senate Homeland Security and Governmental Affairs Committee hearing, U.S. Senator Kamala D. Harris pressed Department of Homeland Security (DHS) Secretary Kirstjen Nielsen on reports that federal agents will now forcibly remove children from their parents when apprehended at the border in order to deter illegal immigration.

“Secretary Nielsen, as I sit here today I’m extremely concerned about the Administration’s repeated attacks on some of the most vulnerable communities, and in particular children and pregnant women as it relates to the work of DHS,” Harris said. “[DHS] has separated 700 children from their parents at the border since October of 2017, including more than 100 children who are under the age of four. What purpose have you been given for separating parents from their children?”

Under Harris’ questioning, Nielsen committed to providing better data in regards to parents and children who have been separated at ports of entry, as well as training materials and protocols related to the process for federal agents to separate children.

Harris also pressed Nielsen on a recent policy change by Immigration and Customs Enforcement (ICE) that allows for more immigrant pregnant women to be held in detention facilities. Harris highlighted multiple federal oversight reports that have documented cases of miscarriages, sexual abuse, as well as deaths of immigrants under federal custody.

“Regarding detention conditions, Secretary, are you aware that multiple federal oversight bodies such as the OIG [Office of Inspector General] and the GAO [Government Accountability Office] have documented medical negligence of immigrants in the detention system, in particular that ICE has reported 170 deaths in their custody since 2003?,” Harris asked, adding, “Are you aware that they also found that pregnant women in particular receive insufficient medical attention while in custody, resulting in dehydration and even miscarriages?”

Harris continued by pressing Nielsen on the reports of sexual abuse, asking, “Can you please provide to this committee an analysis of what is going on, and what plan you have to investigate those cases of sexual abuse, and what is the protocol in place in terms of what is being done to allow the victim to be in a safe place during and pending any investigation? What kind of services are these victims getting in terms of treating their trauma, much less any medical attention they may need as a result of what might be the sexual abuse?”

Nielsen committed to providing an analysis, stating “I will.”

Yesterday, Harris and Representative Pramila Jayapal (D-WA) introduced the Detention Oversight Not Expansion (DONE) Act, legislation that would increase oversight of ICE detention facilities as well as prevent the construction or expansion of detention facilities.

Full transcript of Harris’ questioning below:

Harris: Secretary Nielsen, as I sit here today I’m extremely concerned about the Administration’s repeated attacks on some of the most vulnerable communities, and in particular children and pregnant women as it relates to the work of DHS. 

In particular, under your leadership, DHS has rescinded the DACA program – and under the leadership of the Administration predating your arrival as Secretary – DHS has rescinded the DACA program, putting 700,000 young people at risk of deportation.

It has separated 700 children from their parents at the border since October of 2017, including more than 100 children who are under the age of four.

The agency has released a directive that allows for more detention of pregnant women to immigrant detention facilities.

The agency has instituted a new information sharing system between the Office of Refugee Resettlement and ICE that is likely to have a chilling effect on sponsors who otherwise would be willing to come forward to provide care for unaccompanied minors, and instead of allowing those children to remain in detention.

The agency has dramatically increased enforcement actions that have left an untold number of both immigrant and U.S. citizen children without one or both parents, leaving some of those children in the child welfare system.

And then just last Wednesday, the Washington Post reported that you are considering undermining the Flores Agreement, an agreement that ensures standards of care for immigrant children such as the provision of meals and recreation, and that they are placed in a least restrictive setting as possible.

In the course of carrying out these actions, the Administration has routinely provided misleading information to this committee, and has even gone so far as to claim that policies such as routinely separating families, are carried out in the best interest of the child, which many consider to be cruel.

So my question to you is last Thursday, when the New York Times reported that the President has directed you to separate parents from children when they cross into the United States as a way to deter illegal immigration, is that correct? Have you been directed to separate parents from children as a method of deterrence of undocumented immigration?

Nielsen: I have not been directed to do that for purposes of deterrence, no.

Harris: What purpose have you been given for separating parents from their children?

Nielsen: So my decision has been that anyone who breaks the law will be prosecuted. If you’re a parent or you’re a single person or you happen to have a family, if you cross between the ports of entry we will refer you for prosecution, you have broken US law.

Harris: At an April 26 hearing, I asked Undersecretary James McCament to provide me with what percentage of cases exist in your agency where a child has been separated from a parent or guardian since October of 2017, wherein the case resulted in trafficking charges. I have not been given that information. Can you provide that to me?

Nielsen: I do not have it now but yes I will provide that to you.

Harris: Ok, can you do that by the end of next week?

Nielsen: If we have the information, yes.

Harris: Thank you. I also ask that I be provided with what training and procedures are being given to CBP officers as it relates to how they are instructed to carry out family separation. I have not received that information. Do you have that today?

Nielsen: No, you have not asked me for it so I do not have it but I would be happy to give that to you.

Harris: No, I asked you for it – ok, so again by the end of next week, please.

Nielsen: Can you explain a little more what you’re looking for?

Harris: Sure. So your agency will be separating children from their parents.

Nielsen: No, what we’ll be doing is prosecuting parents who have broken the law, just as we do every day in the United States of America.  

Harris: I can appreciate that. But if that parent has a four year old child, what do you plan on doing with that child? 

Nielsen: The child, under law, goes to HHS for care and custody. 

Harris: They will be separated from their parent. And so my question -

Nielsen: Just like we do in the United States every day.

Harris: So they will be separated from their parent, and my question then is when you are separating children from their parents, do you have a protocol in place about how that should be done and are you training the people who will actually remove a child from their parent on how to do that in the least traumatic way? I would hope you do train on how to do that, and so the question is and the request has been to give us the information about how you are training and what the protocols are for separating a child from their parent.

Nielsen: I’m happy to provide you with the training information.

Harris: Thank you. And what steps are being taken, if you can tell me, to ensure that once separated, parent and child, that there will be an opportunity to at least sustain communication between the parent and their child?

Nielsen: The children are at HHS but I’m happy to work with HHS to get you an answer for that.

Harris: And I’d like it to be broken down between what you’re doing for children over the age of four and what you’re doing for children under the age of four. On May 4, the President of the American Academy of Pediatrics issued a statement on behalf of the organization stating that he is appalled by a new policy by the DHS that will forcibly separate children from their parents. He went on to talk about that they will create stressful experiences, like family separation, which can cause irreparable harm, disrupting a child's brain architecture, affecting his or her short- and long-term health. And these findings are generally shared by the American Medical Association and many child welfare advocates and professionals. Last Tuesday before Senate Appropriations, you testified that you are “working with the community to understand the science” as it relates to the impact of such separation. Do you dispute that separating a child from their parent will create and cause trauma for that child?  

 

Nielsen: I believe the question that was asked to me if I was aware of the information and what I said is I would be happy to look into the studies. Again we do not have a policy to separate children from their parents. Our policy is if you break the law, we will prosecute you. You have an option to go to a port of entry and not illegally cross into our country.

Harris: Secretary Nielsen, we do have a policy in this country as a general matter in the justice system that if someone breaks the law, they will be prosecuted. We also have protocols about what is allowable and not in connection with an arrest, in connection with detention in a jail, in connection with how many hours or days with which we can bring charges or not. So to suggest that the only law in this country relates to what you do at the end is really misleading.

Nielsen: But that’s not what I just said ma’am. If you’re asking if we train and we take care of them and we work with HHS - we now have a memorandum of agreement so that we can make sure that the children go to people who are actually family members and who are not traffickers and who won’t abuse them.

Harris: Great, so those are the policies I’d like to see.

Nielsen: Ok.

Harris. Thank you.

Second round of Harris’ questioning:

Harris: Secretary Nielsen, how many children have been separated from their parents at ports of entry since January of 2017?

Nielsen: So I understand you’ve referenced 700 before which I believe was an HHS number. Our figures are not the same as theirs but we’re happy to come give you our numbers and explain why they differ.

Harris: Ok great, and can you submit that by the end of next week with the other information? And do you –

McCaskill: Could you share that with the committee? I think that’s something -

Nielsen: Of course.

McCaskill: If you guys have different numbers of children, that’s something that just on its face is rather alarming. So I’d like to figure out why.

Nielsen: Yes, I think it’s in part because when HHS does the in-review, they don’t ask the child why they are unaccompanied. So their numbers are different than ours if you’re asking at the border, for example. So it’s not necessarily that they conflict, it’s just they’re asking different questions, but yes of course we’ll provide you the information explaining you that.

McCaskill: Thanks.

Harris: Ok, and again I’ve asked these questions of Undersecretary McCament before so perhaps everyone’s working on it and I would expect that we should get it by the end of next week. Can you also give us information about what the average length of separation has been between those children and their parents? And that would be that number that you are now going to bring to us.

Nielsen: Okay.

Harris: And also what timelines, in terms of the policy that you have, exist to establish a parental relationship or to reunify families. I’m hoping and will assume that your protocols would have such a goal in mind or at least a timeframe.

Nielsen: Yes ma’am, they do. Part of it is a voluntary DNA test if it’s a family member. The concern that I have with that, and we do offer that, but the concern of course is you could still have a custodial relationship and not be a blood relative. So it’s not dispositive to an appropriate custodian. But yes of course that is our goal.

Harris: And then as it relates to the number of children who have been separated from their parents at points of entry, again I would like also for the committee information on how many of those cases resulted in trafficking charges. Regarding detention conditions, Secretary, are you aware that multiple federal oversight bodies such as the OIG and the GAO have documented medical negligence of immigrants in the detention system, in particular that ICE has reported 170 deaths in their custody since 2003? Are you familiar with that?

Nielsen: No ma’am.

Harris: Are you aware that they also found that pregnant women in particular receive insufficient medical attention while in custody, resulting in dehydration and even miscarriages?

Nielsen: I do not believe that is a current assessment of our detention facilities.

Harris: Ok, can you please submit to this committee a current assessment?

Nielsen: Yeah I’m happy to. So we provide neonatal care. We do pregnancy screening from ages 15 to 56. We provide outside specialists, should you seek it. We do not detain any women past their third trimester, once they enter their third trimester. We provide them separate housing. So yes, we’re happy to detail all of the things we do to take good care of them.

Harris: And did you submit that to the OIG in response to their findings?

Nielsen: We have been – yes, of course, working in conjunction with OIG, I’m not sure exactly what the date is of the OIG report that you are referencing but I will look into it after this.

Harris: And then also between fiscal year ’12 and March of 2018 it’s our understanding – before I go on, the OIG report is from December of this past year, 2017. So it’s very recent, five months ago. Also, between FY12 and March 2018, ICE received according to these reports, 1,448 allegations of sexual abuse in detention facilities and only a small percent of these claims have been investigated by DHS OIG, are you familiar with that?

Nielsen: I am not familiar with that number, no.

Harris: Ok, can you please provide to this committee an analysis of what is going on, and what plan you have to investigate those cases of sexual abuse, and what is the protocol in place in terms of what is being done to allow the victim to be in a safe place during and pending any investigation? What kind of services are these victims getting in terms of treating their trauma, much less any medical attention they may need as a result of what might be the sexual abuse?

Nielsen: I will. What I have done is I have talked to the international community, the Red Cross, and I had them visit some of our detention facilities, I’m sure they would be happy to come brief you on that. But their determination is that they saw nothing but appropriate detention and in fact much better detention than they in their experience have seen in other areas.

Harris: I’m sorry, is this in response to the concern that you have received 1,448 allegations of sexual abuse in detention facilities?

Nielsen: No ma’am, this is in response to my wanting to ensure that the detention centers are taking appropriate care of anybody who is detained.

Harris: Ok well obviously sexual abuse would not fall in that category.

Nielsen: It would not, I guess what I’m saying is that just happened, I don’t know when these results are that you are talking about so I will look into them of course.

Harris: FY12 to March of 2018, this year.

Nielsen: We will look into it.

Harris: Thank you. And regarding your treatment in the facilities of pregnant women, on December 14 – again, in this report - ICE issued a new directive that terminated a previous policy of presumptive release for pregnant women which were apprehended or transferred to ICE. ICE adopted a policy for a presumption of release in August of 2016 in recognition of the clear health risks that detaining pregnant women in jail-like conditions posed. I was alarmed, frankly Secretary, by your statement to Senator Murray before the Senate Appropriations Committee last Tuesday that pregnant women in ICE detention were receiving “much better care than when they're living in the shadows.” So are you aware that this statement contradicts the views of the American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, and the American Academy of Pediatricians who have all criticized the harmful effects of immigration detention on the medical and mental health of pregnant women?

Nielsen: What I do know is that if you cross between points of entry, you will be detained and prosecuted. I also know that of the only 35 people that we have currently in detention who are pregnant, 33 are statutorily required to be detained. I also know that we go above and beyond to provide them adequate healthcare. The questioning was whether or not they received adequate healthcare, I was saying yes they do, and it’s paid for. So if they are coming here and they’re fleeing persecution and they don’t have adequate funds and they’re trying to get equivalent care in the shadows, it was my discussion that we were providing care within the detention centers.

Harris: So is it your intention to continue with ending a program that allowed for presumptive release for pregnant women?

Nielsen: If you’re in your third trimester you will be released, but if you break the law you will be detained.

Harris: So when in the third trimester exactly, how many weeks?

Nielsen: When it begins. When it begins.

Harris: At the beginning of the third trimester?

Nielsen: Yes ma’am.

Harris: And is there a directive that has gone out?

Nielsen: Yes.

Harris: Will you supply the committee please with a copy of that?

Nielsen: Yes, it’s the same policy we’ve always had, the only thing we’re doing now is we are no longer exempting classes of people form the law. If you break the law, you will be prosecuted.

Harris: Thank you.

 

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