House Democrats used Tuesday’s hearing on the Trump administration’s controversial “zero tolerance” policy to hammer officials over what they knew about the policy, when they knew it and what they did about it.
All the agencies involved in the rollout of the policy were present, providing lawmakers a unique opportunity to pose questions about each aspect of the policy that resulted in thousands of undocumented immigrant children being separated from their families.
Here are five takeaways from the hearing.
There was no comprehensive tracking mechanism to identify separated families
The question hovering over the Trump administration since the “zero tolerance” policy was ended has been, where are the children?
“How did (Customs and Border Protection) not ensure it had an adequate system before separating them?” asked House Judiciary Chairman Jerry Nadler.
Officials acknowledged there was no comprehensive system, but agencies were able to work in their own systems.
“(W)e had the ability to track, we have always had the ability to track,” US Border Patrol Chief Carla Provost said, before adding that “we did not have a searchable field prior to that time frame focused on specifically separated members of families.”
During the hearing, Provost repeatedly reminded lawmakers that the “zero tolerance” policy was a “prosecution initiative.”
Rep. Sheila Jackson Lee Jackson also pressed Scott Lloyd, now an HHS senior adviser, on the issue, as well.
“I wouldn’t agree with your characterization that there was not tracking. The tracking that occurred, occurred within our normal case management system,” Lloyd said. “Our tracking of the circumstances under which kids come into our care is ongoing.”
Last year, a US district judge ordered the administration to identify and reunify children who had been separated from their families after being apprehended at the US-Mexico border.
Administration officials did not raise objections about the policy
Lloyd, ICE head of Enforcement and Removal Operations Nathalie Asher, and DOJ Director of Executive Office for Immigration Review James McHenry were asked by Rep. Sylvia Garcia about whether they ever spoke up about the policy.
“Didn’t you ever think ‘this really goes against humanity. We should not be doing this?’” Garcia asked. “I’m not asking you to share a discussion with the attorney general or anyone else. You as a human being, didn’t it ever strike you to say, ‘wait a minute guys, I know I am a lawyer but,’ cause I’m a lawyer and I’m a former judge too and sometimes I saw things I didn’t like and I did speak up. You never did that?”.
Lloyd, Asher, and McHenry appeared to suggest that they did not raise concerns, despite the disarray the policy caused within agencies as has been made clear in government reports.
Notably, Lloyd said he was aware of concerns raised by White, who has said he wouldn’t have supported the policy, but did not take them up the chain of command.
There are thousands of allegations of sexual abuse against children in custody
Democratic Rep. Ted Deutch caught many by surprise Tuesday when he introduced a new set of HHS documents obtained by his office that showed thousands of allegations of sexual abuse against children in custody, prompting a heated back and forth between him and White.
“I am deeply concerned with documents that have been turned over by HHS that record a high number of sexual assaults on unaccompanied children in the custody of the Office of Refugee and Resettlement,” Deutch said.
White interjected to say that it was not HHS staff, later adding, “this is a longer conversation.”
According to the documents, HHS received more than 4,500 complaints of sexual abuse against unaccompanied minors from 2014-2018, and 1,303 were reported to the Justice Department.
The documents “demonstrate over the past three years, there have been 154 staff on unaccompanied minor, let me repeat that, staff on unaccompanied minor allegations of sexual assault.”
Republican Rep. Tom McClintock provided White another opportunity to respond to the allegations.
“We share concern that I think everyone in this room feels. Anytime a child is abused in the care of ORR is one too many,” White said.
Lloyd confirmed that he tracked pregnant women in custody
Lloyd’s tenure as ORR director was mired in controversy over abortion and reports that he tried to block young women from getting the procedure.
Democratic Rep. Madeleine Dean questioned Lloyd on his record Tuesday, specifically whether he kept menstrual records of young women in custody. Lloyd denied that he kept such records, but said pregnant women were tracked.
“It is a yes or no. Did you track, did you create any kind of tracking mechanism?” Dean asked.
“I don’t have a yes or no answer to that question. The best I guess as to what you are referring to is list that included pregnant women, and it would have mentioned their last menstrual period, which is a way of tracking the amount of time they’ve been pregnant,” Lloyd responded.
Indeed, Lloyd received notifications about young pregnant women in ORR care, according to emails obtained in an ACLU lawsuit. Notifications, according to the emails, included the age of the minor, the shelter they were staying in, and weeks of gestation.
Lloyd’s strongly held views on abortion became a point of contention during his tenure – eventually manifesting into a national controversy that bubbled up to the Supreme Court.
In 2017, the administration tried to block a 17-year-old girl, who came to the US illegally without her parents and learned she was pregnant while in ORR custody, from getting an abortion.
The American Civil Liberties Union sued the administration on behalf the undocumented teenager. An appeals court eventually ruled that she could get terminate the pregnancy.
The ruling angered the Trump administration and led the government to ask the Supreme Court to intervene. The court wiped away the lower court ruling and rendered the issue moot.
Democrats set the groundwork for two years of oversight
Above all, Tuesday’s hearing offered a preview of what’s to come under a Democratic-controlled House, particularly on the issue of family separation. Lawmakers appeared frustrated at times over the lack of transparency on the policy, referring to government reports that paint a picture of confusion and chaos.
The House Appropriations Committee has a hearing on family separations set for Wednesday as well.
But hearings are not their only avenue for answers. The House Judiciary Committee, like others, is also requesting documents from agencies on the issue.
A separate committee, the House Oversight Committee, voted Tuesday to issue subpoenas related to family separation.
The vote was bipartisan with Republicans Justin Amash of Michigan and Chip Roy of Texas voting with the Democrats.