On April 6, 2018, then Attorney General Jeff Sessions announced that the U.S. Department of Justice (DOJ, Department) had adopted a “zero tolerance policy” for immigration offenses involving illegal entry and attempted illegal entry into the United States. The policy required each U.S. Attorney’s Office (USAO) on the Southwest border to prosecute all referrals for illegal entry violations, including misdemeanors, referred by the U.S. Department of Homeland Security (DHS) “to the extent practicable, and in consultation with DHS.”
Following the DOJ issuance of the zero tolerance policy, DHS changed its practice and began referring family unit adults to DOJ for criminal prosecution and the Department agreed to prosecute these cases. As a result, more than 3,000 children were separated from their families and issues regarding reuniting children with their parents remain as of this date.
The Department of Justice Office of the Inspector General found that Department leadership and, in particular, the Office of the Attorney General (OAG), which had primary responsibility for the policy’s development, failed to effectively prepare for, or manage, the implementation of the zero tolerance policy. Sessions and a small number of other DOJ officials understood that DHS would change its policy in response to the zero tolerance policy and begin referring to DOJ for criminal prosecution adults who entered the country illegally with children and that prosecution of these family unit adults would result in children being separated from them, at least temporarily. The OIG found that the OAG advocated for this DHS policy change and therefore was a driving force in the DHS decision to begin referring family unit adults for prosecution.
However, DOJ leadership, and the OAG in particular, did not effectively coordinate with the Southwest border USAOs, the USMS, HHS, or the federal courts prior to DHS implementing the new practice of referring family unit adults for criminal prosecution as part of the zero tolerance policy. OIG further found that the OAG’s expectations for how the family separation process would work significantly underestimated its complexities and demonstrated a deficient understanding of the legal requirements related to the care and custody of separated children. OIG concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations.
In addition, the increase in immigration prosecutions under the zero tolerance policy created operational, resource, and management challenges for the USMS, the USAOs, and the courts. DOJ officials were aware of many of these challenges prior to issuing the zero tolerance policy, but they did not attempt to address them until after the policy was issued.
The OIG made three recommendations to assist the Department in implementing future policies.
- Prior to issuing a significant policy affecting multiple Department of Justice components, other Executive Branch agencies, or the courts, coordinate directly with affected stakeholders to ensure effective implementation.
- Establish guidance and procedures for U.S. Marshals Service staff to follow in working with the Department of Health and Human Services’ Office of Refugee Resettlement case workers to facilitate communication between family unit adults separated from associated family unit minors, especially parents in U.S. Marshals Service custody and their children in Office of Refugee Resettlement custody.
- Work with the Department of Health and Human Services’ Office of Refugee Resettlement and the Department of Homeland Security to develop a formal interagency agreement (such as a memorandum of understanding) regarding the facilitation of communication between separated children in Office of Refugee Resettlement custody and their parents in U.S. Marshals Service custody.