DOJ Lawyers Contradicted Nielsen On Family Separations Within Hours Of Her Testimony

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Within hours of Homeland Security Secretary Kirstjen Nielsen telling members of Congress that, “to the best of my knowledge,” no parent who was separated from their child at the U.S.-Mexico border was deported without being given the option of being reunited with them first, Justice Department lawyers contradicted her.

In her first appearance before a congressional committee controlled by Democrats on Thursday, Nielsen told Homeland Security Committee Chairman Bennie Thompson (D-MS): “There was no parent who has been deported, to my knowledge, without multiple opportunities to take their children with them.”

But within hours, Justice Department lawyers signed onto a court filing in the ongoing class action lawsuit over family separation that directly contradicted Nielsen.

In a joint status report from Trump administration lawyers and lawyers representing parents who were separated from their children, the DOJ lawyers said there were 471 “possible class members” who were deported “without their children, and without being given the opportunity to elect or waive reunification in accordance with the preliminary injunction.” (Read the JSR in full below.) 

What that means is that as many as 471 parents may have been deported without first being given the option of reunifying with their kids.

A DHS spokesperson argued in a statement to TPM that the filing “simply noted that the ‘possible’ universe of parents removed prior to the preliminary injunction was 471.”

“While the preliminary injunction formalized the opportunity to elect or waive reunification, even prior to the preliminary injunction it was the routine practice of ICE to allow parents to choose to take their children with them when being removed,” the statement continued.

DHS had no comment for the record when TPM asked if they could say with certainty — or to their knowledge, as Nielsen did — that no parent had been deported without the option of being reunited with their child beforehand.

Nielsen’s testimony smelled fishy from the start: Rep. Kathleen Rice (D-NY) quoted her remarks to Chairman Thompson and flatly wrote “This is a lie.” Lee Gelernt, the ACLU’s top lawyer on the class action lawsuit — referred to as Ms. L — said in a CNN interview Thursday that Nielsen’s testimony on the matter was “not true.”

“The families were deported, and they had no idea of what they were signing,” Gelernt said. “Many of them thought their children would actually be on the plane with them.”

He added, referring to Nielsen’s testimony: “Ultimately, we’re going to have to find out what was making its way up the chain, but if she didn’t know, she should have known.

The anguish of separated families — whom the judge in the Ms. L case ordered must be reunited the same week President Donald Trump signed an order purporting to the end the separation policy, in June 2018 — was compounded by other anti-immigrant policies and a bureaucratic failure to effectively keep track of the children in real time.

Government watchdogs have found that the administration may have vastly underestimated the number of separated families and repeatedly violated basic child protection rules while carrying out the policy.

One especially troubling problem concerned the failure to reunite parents with their children before deportation — the subject of part of Wednesday’s hearing and the Ms. L court filing.

As TPM reported last year, some parents separated from their children were pressured by government officials into being deported without them. Others signed deportation waivers with the belief they would be united with their children before deportation, only to remain separated.

According to a July 2018 court filing from attorneys representing separated families, many parents were given paperwork presenting their right to be reunited with their children in a language they did not understand. Some parents, the filing said, “were adamant that they had signed a paper that said they had chosen to be reunited with their children,” only to find that the government didn’t agree.

That same month, an unnamed Trump administration official told Politico that hundreds of parents may have been deported without any documentation indicating they’d waived the right to be reunited their children first.

All the while, Nielsen maintained her assertion — one now contradicted not only by activists, immigration lawyers, unnamed government officials and members of Congress but also by the Justice Department — that “the parents always have the choice to take the children with them.”

Read Wednesday’s joint status report below:

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