Blowback over border separations amps up tensions inside Trump administration

The White House was thrown into turmoil after a handful of photographs of school-aged immigrant children, held behind fences in detention centers, ignited on social media.

President Donald Trump and top aides including policy adviser Stephen Miller felt deeply frustrated that these images, which dated back to the Obama administration, were getting pinned on them, according to people familiar with the reaction. So they created a special working group to do what this White House does best — push back and shift blame to Democrats through presidential tweets and a rare on-the-record briefing by Miller.

In reality, Trump’s own administration has increased the likelihood of family separation with a new policy to refer anyone suspected of crossing the border illegally for prosecution, including asylum seekers. The change is in keeping with the “shock and awe” tactics favored by top White House policy aide Stephen Miller, the architect of last year’s travel ban, which was initially blocked by courts after creating widespread chaos at airports.

The shift has brought tensions to a boil between some administration officials and the White House over how far they can push immigration policy, both legally and politically. Interviews with 16 current and former administration officials, immigration experts, and close White House advisers reveal a potentially thorny political quandary for the president: how to balance promises to his base, which favors a tough approach to border security, with efforts to appeal to moderate, independent, and suburban voters who may be turned off by visual images of immigrant parents separated from their kids.

“From the president’s standpoint, it is a double standard. He gets hit hard even though he feels he is just doing what the previous administration had done. The media is so quick to validate a false narrative,” said one former campaign official. “You can’t blame Trump because past administrations never dealt with illegal immigration.”

But some current and former administration officials see the renewed border crackdown as the latest example of enacting an aggressive policy without enough resources in place to deal with the resulting logistics – in part because the chaos may have the desired effect of scaring would-be migrants and deterring them from crossing the border in the first place.

“My sense is that they see what happened with the Muslim travel ban as a pretty good success story,” said one DHS official. “Why try to do the first draft correctly if you get so many bites at the apple?”

Miller has worked closely with a web of political appointees throughout the administration, including Sessions’ son-in-law John Walk, a lawyer in the White House counsel’s office, as well as lawyer Chad Mizelle; Thomas Homan, the soon-to-retire head of ICE; Francis Cissna, director of U.S. Citizenship and Immigration Services, and Gene Hamilton, a former staffer to Sessions on Capitol Hill who’s now at the Department of Justice.

These hardliners feel that Department of Homeland Security Secretary Kirstjen Nielsen, a close ally of White House chief of staff John Kelly, isn’t being creative or tough enough in using executive authority to carry out the president’s immigration agenda.

“From my conversations with many officials, both career and appointed, it is apparent that they are concerned about the lack of progress in curbing these illegal entries and making the system work, and their efforts and ideas have been ignored,” said Jessica Vaughan, policy director at the Center for Immigration Studies, a group that favors lower levels of immigration.

Nielsen’s allies argue that such an aggressive approach often ignores legal boundaries or court decisions. And, they point out, when the administration’s immigration moves get challenged, it will be Nielsen and her team, not Miller, who get dragged before Congress or into court to explain.

Even before the latest policy change, the American Civil Liberties Union filed a class-action complaint in San Diego on behalf of a Congolese mother separated from her 7-year-old daughter for more than four months, as well as others in similar situations.

Two DHS officials said they had not seen any legal analysis making the case for the new prosecution strategy before Sessions announced it in May — a standard part of rolling out policy.

“In a normal administration, you make an analysis of the law and the policy change,” said one of the DHS officials. “The notion is to reduce litigation around it.” This person added: “It’s not clear to me that any of that foundational legal work has been done.”

Justice Department spokesman Devin O’Malley rejected the suggestion that the administration lacks the legal authority for stepped-up prosecutions of alleged border crossers.

“For years, the Department of Homeland Security has apprehended and referred tens of thousands of illegal aliens to the Justice Department, which then prosecutes them — just like other federal crimes,” he said in a written statement. “It is unclear how these anonymous sources arrived at the conclusion or insinuation that it is illegal for the attorney general and DHS secretary to prosecute those who break the laws passed by Congress — and which keep our nation and its citizens safe — but I assure you that both are well within their authority to do so.”

One senior administration official said any differences between Nielsen and Miller and other immigration hardliners were not over policy but over style.

“She is smart enough to understand the situation she is in and smart enough to know not to work against the president,” said another administration official.

White House deputy press secretary Hogan Gidley said “there is no daylight between the White House and Homeland Security on the measures needed to protect our nation. Secretary Nielsen is implementing bold reforms to save and defend innocent American lives.”

DHS spokesman Tyler Houlton added that Nielsen and Trump are “clearly on the same page” when it comes to national security. “Any accusations to the contrary are simply false,” he said, citing DHS’ enhanced vetting of visitors to the U.S., the deployment of National Guard troops to the southwest border, and the move to refer all suspected border crossers for prosecution.

But top government officials have acknowledged that the Health and Human Services Department is almost at capacity with shelter beds for unaccompanied minors, while advocates have raised questions about whether the agencies have enough staff and resources to care for immigrant children, including toddlers.

Shelters for unaccompanied minors, which are overseen by the Department of Health and Human Services, historically have been geared more toward teenagers, who came into the country alone, and who can live in dorm-like settings – not to children who need cribs, formula, help getting dressed or going to the bathroom. Advocates worry about the length of time these children could be held in custody away from their parents, as well as the difficulty of reuniting families held in different parts of the country.

A backup plan exists to help with the resources: the HHS Office of Refugee Resettlement maintains 1,218 reserve beds and could open temporary facilities, including one in Homestead, Fla. If the department exceeds its $1.3 billion budget to house unaccompanied minors, it may need to transfer funds from other parts of its budget, which it’s done in the past.

“There’s no way HHS has the capability to handle this kind of influx of children, especially small children,” said Lee Gelernt, an ACLU attorney representing the plaintiffs in the San Diego case. “I think it’s only going to get worse.”

Kenneth Wolfe, a spokesman for the HHS Administration for Children and Families, said the agency “routinely [evaluates] the needs and capacity of an existing network of approximately 100 shelters in 14 states” to care for unaccompanied minors, but the department did not comment on whether facilities are prepared to handle a surge of young children.

DHS referred roughly 29 percent of adults suspected of illegal entry and illegal reentry to the Justice Department for prosecution during a nearly seven-month period through mid-April, according to data provided by a DHS official. The number of suspected border crossers referred for prosecution doubled in the past month, according to the official.

That would mean the department is referring roughly 60 percent of suspected border crossers for prosecution – a dramatic increase, but still short of 100 percent Sessions targeted on May 7.

For immigration hardliners, the new “zero-tolerance” strategy — and its effect on migrant families — is a long-overdue step to deter illegal immigration and phony asylum claims.

“When the only consequence of sneaking across the border is you’re just sent back and can try again, there’s no reason not to try again,” said Mark Krikorian, executive director of the Center for Immigration Studies. He likened adults bringing children to the border, who include people fleeing the violent Central American cartels the Trump administration routinely demonizes, to petty criminals: “If you rob a liquor store, you’re going to be separated from your kids.”

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