Though the Trump administration outwardly is maintaining that it is continuing its “zero-tolerance” border policy, email traffic obtained by CNN shows that the policy has effectively been curtailed for now – the latest sign of confusion and disarray over how to implement an executive order designed to halt family separations at the border.
The decision by Customs and Border Protection to put a hold on referring adults caught crossing the border illegally if they arrive with their children comes after President Donald Trump signed an executive order asking his agencies to keep families together at the border – though it did not order a halt to prosecutions.
The suspension of referrals flies in the face of what the Justice Department was telling reporters was operational Thursday, leaving the impression of an administration at odds with itself on a policy that has generated weeks of outrage and emotional reaction even from some of the President’s most loyal supporters.
The move comes as officials have been unable to provide the media with answers as to how Trump’s executive order will be implemented for more than a day, even as thousands of families affected by the initial “zero tolerance” policy remain separated and in some cases split up over thousands of miles.
According to email traffic sent Wednesday night and Thursday morning that was obtained by CNN, Customs and Border Protection has told its field offices to suspend referring any parents who cross the border illegally with their children for prosecution for misdemeanor illegal-entry charges. The move, which could be reversed, effectively neuters “zero tolerance” as long as it is in effect.
The series of emails shows how the President’s order left government agencies scrambling for how to comply – as it was rolled out without any clear guidance on what the practical effect would be.
Border Patrol serves as the clearinghouse for all immigrants caught crossing the border illegally under current policy. Border Patrol has only temporary detention facilities, which are designed to house immigrants while they are either sent for criminal charges, sent into Immigration and Customs Enforcement detention facilities, released with court dates and possible monitoring or, in the case of children, handed over to the Health and Human Services Department.
The order even seemed to have come together hastily, with news that it was in the works surprising those on Capitol Hill and even one source in an agency that would carry out the order, who were unsure what it would say.
The guidance to not refer for prosecution still stood as of Thursday afternoon, according to a source familiar with the matter.
That guidance could change at any point – there is no indication in the email of how long the suspension will last, and it could be for only as long as it takes the government to come up with an implementation plan. There also is no indication that those adults won’t be referred for prosecution once a system is in place for that.
The Washington Post first reported that Customs and Border Protection was stopping the referral of the cases for prosecution, citing an official.
The Justice Department said in response that “there has been no change to the Department’s zero tolerance policy to prosecute adults who cross our border illegally instead of claiming asylum at any port of entry at the border.”
But because Customs and Border Protection must refer cases to Justice for prosecution, the decision to stop referring parents effectively neuters the zero tolerance policy.
According to the email traffic, Customs and Border Protection originally planned to prosecute one parent if a multi-parent family were caught – then changed the guidance to suspend referrals for any parents with families unless there is concern about the child or serious criminal records for the adults. The guidance still allows for discretion by those in the field.
Asked about the email traffic,, Customs and Border Protection sent the same statement it had issued Thursday morning, which says: “The Border Patrol will continue to refer for prosecution adults who cross the border illegally,” per a spokesman.
In different email traffic obtained by CNN, it is clear that confusion has continued to abound after the executive order.
The order requires families to be held together – meaning they will need to be kept in detention space that is designed for families.
But late Wednesday evening, after the executive order was signed, an ICE official sent a notification that the family detention centers the agency runs would close for three days. Those would be the places families are sent if they are to be detained together, as the order maintains.
The notice said families could not be sent there in the meantime.
By Thursday afternoon, a different ICE official said the residential centers were back open and to spread the word, allowing for families to be transferred again.