Thread by @ReichlinMelnick

Good morning all! I'll be watching this hearing over the next couple hours. I'm tuning in now, during @RepJerryNadler's opening statement.

This is the second of several oversight hearings in the new Congress on family separation, something that is desperately needed. Stay tuned!

https://twitter.com/HouseJudiciary/status/1100158402184048640

A powerful statement from @RepJerryNadler in his opening statement. "When a stranger rips a child from a parent's arms without any plan to reunify them, it is called kidnapping."

Rep. Nadler then calls family separation kidnapping again and highlights the trauma to children.

From @RepJerryNadler on the El Paso family separation pilot project: "How is it remotely possible that after quietly conducting this family separation program for five months, the agencies at this hearing did not recognize the obvious need for critical officer training, ...

... for a system for tracking families, or a plan for eventual reunification. The failure to take these steps as the program was expanded demonstrates an utter indifference to human suffering which shocks the conscience."

Rep Nadler concludes and Rep. Collins, his Republican counterpart, begins by reading off a statement about human smuggling, asylum fraud, and people crossing the border. Collins is far less animated than his incredulous and theatrical performance during the last oversight hearing

Rep Collins implies (falsely) that Obama separated families the same way that Trump did. As @DLind has written, this isn't true at all. While some family separations did occur, it was never as systematic and at the same scale. vox.com/2018/6/21/1748…

Rep Collins then says deterrence hasn't worked, and that "The perverse incentive to come to the US illegally and falsely claim asylum is strong."

As I wrote in my declaration in the @ACLU's lawsuit against Remain in Mexico, there's no evidence of this. aclu.org/legal-document…

As Rep. Collins comes to the conclusion of his opening statement, it's worth noting his tone here when compared to A.G. Whitaker's oversight hearing. Then, he was yelling and shouting about accusations that Whitaker was being treated poorly. Today he seems mostly bored.

Now an opening statement from @RepZoeLofgren (with my former colleague @jbreisblatt sitting behind her). "There will be no winners" at the end of this hearing, she says. And she's right. Even with oversight, the trauma to children and their parents will remain.

"We now know separating families was the specific intent of zero tolerance" says @RepZoeLofgren, and cites to proof of the administration's family separation policy, including a memo @SecNielsen signed. Here's a copy of that memo. pogo.org/document/2018/…

Now @RepZoeLofgren highlights how we STILL don't know the true toll of family separation and how many parents were separated. "As a mother and grandmother, my heart aches for all of them."

We may never know how many families were separated. vox.com/policy-and-pol…

We turn to Rep Lofgren's Republican counterpart, Rep. Ken Buck @RepKenBuck. Rep Buck begins by agreeing that family separation wasn't great, but then basically implies that it was necessary because of so-called "open borders policies" allegedly supported by Democrats.

Rep. Buck's claims that there are "loopholes" in asylum laws are false. The "loopholes" are protections for children that require the government to consider their health. The "loopholes" are basic American values of providing humanitarian protections. Seeking asylum is legal!

Now we move to the witnesses.

Nathalie Asher - ICE ERO
Scott Lloyd - HHS (ORR Director during family separations)
James McHenry - EOIR Director
Carla Provost - Border Patrol Chief
Jonathan White - HHS

Here is more information about each witness: judiciary.house.gov/legislation/he…

Just a brief break before we get to the witnesses opening statements; not sure who else is live-tweeting but I know the ACLU's @MadhuGrewal is watching and tweeting about is, as are others!

Our first witness is up for her opening statement; Carla Provost. She is the Border Patrol Chief and, like many Chiefs, extremely experienced. She's been working at the Border since 1995.

Provost highlights high numbers of family units coming and calls on Congress to end the Trafficking Victims Protection Reauthorization Act (TVPRA), which provides protections to unaccompanied children, as well as the Flores settlement, which protects all kids in ICE detention.

Chief Provost gives an interesting statistic; 55 people taken to the hospital a day.

The reality is more complicated; it's not that more people are sick, it's that the Border Patrol just wasn't taking people to the hospital as often before the deaths of Felipe and Jakelin.

We, along with multiple other organizations, actually had to sue @CBP to get them to treat people in their custody well, especially on the issue of medical care. The Border Patrol often failed to take medical issues seriously, a big part of our lawsuit. americanimmigrationcouncil.org/litigation/cha…

We're moving now onto Nathalie Ashher, but I want to stay for a moment on Rep. Provost's comments about family units.

She's right, there are more now than ever. But not actually that many more! We've had spikes before, just not this high.

Back to ICE ERO's witness, Nathalie Asher, who has been praising the "professionalism" of ICE officers during the family separation process.

We filed a complaint with @DHSOIG (that they are still investigating) about ICE agents coercing separated parents. americanimmigrationcouncil.org/advocacy/illeg…

Asher just said something totally false; that families are released into the U.S., "ostensibly never to be heard from again."

There is ZERO evidence of this, as I wrote in my ACLU declaration. Over 87% of people who go through the border asylum process appeared in court.

Our own study, from Professor @Ingrid_Eagly, showed that 86% of all families detained between 2001-2016 appeared at every single hearing. When looking only at families who applied for asylum that rises to 96%. With counsel, up to 97% appeared. americanimmigrationcouncil.org/research/detai…

Now we're on to Scott Lloyd, who was shifted to another position at HHS late last year. Lloyd was an extremely controversial figure, not just for family separation. He was also responsible for personally blocking a raped teen from getting an abortion. aclu.org/news/court-ord…

Lloyd, in reading from his prepared statement, says that the fact that ORR lacked a full database of which children were separated doesn't mean ORR didn't know who had been separated. It just meant that ORR had to look at individual files.

Not much of an excuse, to be honest...

We now move on to Commander Jonathan White, from HHS. He's formerly Deputy Director of the Office of Refugee Resettlement (ORR). He also led reunification efforts at ORR.

He had amazing things to say just days ago. Clearly a very principled man: cnn.com/2019/02/07/pol…

Commander White is saying a lot of similar things in his opening statement that he said last week; that ORR worked in a herculean fashion to reunify parents following the Ms. L order, but that the agency's work was made much harder because of failures to track children.

Commander White is giving a lot of numbers right now, including how many children are still in its care who were separated. There are only 5 remaining children who may be reunited, and 16 children who the agency will not reunite with a parent because of child safety.

As we move on to @DOJ_EOIR director James McHenry (EOIR is the immigration courts, for those following me).

Not entirely sure why McHenry is here to basically talk about DOJ's role in family separation. The immigration courts weren't prosecuting anyone.

I want to go back to BP Chief Provost for a sec. She spoke of how family unit apprehensions were higher than ever. But this is partly because @CBP is turning people away from the ports of entry. When considering all families arriving, the current spike isn't much worse than 2016.

Now we move on to the questioning period. @RepJerryNadler begins by asking how @CBP didn't have a system for tracking family separations.

Chief Provost says, as came out during the last hearing, that there was really no system in place to specifically measure separations.

Chief Provost says that "Border Patrol was prepared for a prosecution initiative"a and seems to reject any @DHSOIG suggestions that CBP was not prepared to deal with the family separation crisis.

Chief Provost is basically trying to wash her hands of the failures of family separation. She says they did their job properly to follow orders to prosecute parents, and that the reunification and tracking part just wasn't the job of Border Patrol because it wasn't their focus.

Now we turn to the first Republican questioning in a while, back to Rep. Collins. He begins by talking about a "crisis" and mentions caravans, which are coming to Ports of Entry... so not a Border Patrol issue.

Chief Provost pauses for a minute before responding.

Now back to this whole thing about "loopholes" or the TVPRA.

The problem that people like Chief Provost and Rep. Collins have to deal with is that these laws have been in place for YEARS. There's no evidence they're the cause of families arriving at the border today.

Nathalie Asher, from ICE, trips up and calls the Flores Settlement the "Flores Act" and says that it's a problem that ICE can't lock up families for long periods of time.

At @immcouncil we've opposed family detention for years. They are not good places. americanimmigrationcouncil.org/news/deplorabl…

If the Flores settlement was ended, that means that the US government could lock up parents and their children in essentially jails for years at a time. In Berks, one child was held for 2 years, from age 1-3. He grew up in jail.

ICE says this is fine. whyy.org/articles/judge…

We move back to @RepZoeLofgren, who asks Commander White about when he raises concerns about family separation to Scott Lloyd, who is.... sitting right next to him and looking somewhat uncomfortable right now.

Lloyd was not at the last hearing where White discussed this.

Commander White says Scott Lloyd advised him that there "was no policy that would result in family separation." Looking forward to seeing how Lloyd responds now.

Now @RepZoeLofgren asks about the reunification of children who were separated before the Ms. L case was filed, and whether the witnesses support the government's argument that it would be too onerous to reunite those children. Asher (from ICE) kind of equivocates on this.

Now to Rep. Sensenbrenner, who begins by noting that the agencies are "overwhelmed" by the numbers and that there are delays in processing.

He begins by asking Commander White if they can perform real-time DNA testing of families to check if they're related.

Commander White notes that under the Ms. L order, they can't DNA test sponsors when deciding to release them if their evidence shows the sponsors are relatives and there's no concerns.

Delays in the sponsorship process led to many kids being held in custody for months.

We're now onto Rep Sheila Jackson Lee (@JacksonLeeTX18). She holds up a picture of children wrapped in mylar blankets, sleeping on mats on concrete floors, held in the Ursula detention center. "I just want to reflect... these are children."

Thank you Rep. Lee!

Rep. @JacksonLeeTX18 now the first to ask Scott Lloyd hard questions.

She asks: "It has been reported that you had little interest in reuniting children with their parents" and had instructed staff to stop tracking families.

Lloyd says that is not true. politico.com/story/2019/02/…

We move to Rep. Chabot, who asks Nathalie Asher about case backlogs in immigration courts.

Those backlogs have grown more rapidly under Trump than anyone else. They're on pace to double in his first term. trac.syr.edu/immigration/re…

EOIR Director McHenry says growth in the backlog before 2017 was largely due to lack of hiring and administrative issue. He says since 2016, backlog growth due to people coming to the US, more cases filed and increased enforcement.

Worth noting, the latter two are ICE's fault.

Chabot again repeats the claim that Central Americans "know that they cannot be separated" and know they'll be released.

A reminder, some of them literally have never heard of New Mexico or where they go. For god's sake, they're not experts in asylum law.
wsj.com/articles/illeg…

Nathalie Asher now citing an ABSURD statistic, that a recent pilot of the family unit docket led to extremely high failure to appear rate.

Asher is basically lying with statistics. The docket is <3 months old, so ONLY cases completed so far are quick orders of removal.

Imagine a court where 10 people are scheduled for an initial hearing. 9 people show. 1 is ordered deported for missing court. The rest are given a new date.

Only 1 case was completed. Asher would say that's a 100% failure to appear rate in completed cases.

But 90% showed up!

That's why Asher is lying with statistics.

The Family Unit docket was started on Nov. 16, 2018. It's been in place for two months! During half of that time, EOIR was shut down!

The only "completed" cases, which Asher cited, are those who missed the first hearing.

I missed Rep. Johnson's testimony entirely while angrily tweeting about Asher. We're now on to Louie Gohmert who is very angry that witnesses won't immediately agree with him that people are separated when arrested criminally in the US all the time (spoiler: it's not the same!).

Rep. Gohmert's time making wild claims that witnesses have a hard time responding to without taking a moment to process what he's asking is a good time for me to go and get a bite to eat. Be back in a bit.

Now onto Rep. Deutch, who moves onto a very different topic; sexual assaults against children in HHS custody. He says there is evidence of 154 sexual assaults against children by HHS staff and asks Commander White about it.

White responds by saying that these are not HHS staff.

Commander White's response is fairly angry at the accusation that his employees are being accused of sexual assault, when it's actually contractors. Deutch says that's basically a distinction without a difference. White says those are PREA reports, not confirmed assaults.

Very contentious moment in the hearing right now, maybe the most contentious yet. Commander White has defended his own efforts to stop family separation from happening, but what Rep. Deutch is discussing is a larger and systematic issue about treatment of children in ORR custody.

As that argument ends, we move to Rep. Matt Gaetz, who asks if, even if all the reports of assault are true, isn't that still better than risks children face in Mexico?

White's great response? "We don't set ourselves a standard of doing better than smugglers and traffickers."

Rep. Gaetz now on to finding ways to praise ICE. Nathalie Asher, from ICE ERO, talks about how ICE morale is down due to all of the criticism.

Maybe ICE ERO wouldn't be criticized so much if they didn't do things like detaining US citizen veterans? buzzfeednews.com/article/hameda…

Once Rep. Gaetz is done, we're on to @RepKarenBass, who raises a very good point about how @CBP is deciding whether a separation is in the best interests of a child. She asks Chief Provost how her agents are trained in this, since they're not social workers.

Although Chief Provost says that most of the time parents are separated because of a "serious criminal record," @RepKarenBass points out that when she went to the border, a CBP agent told her a parent was separated just because of a DUI conviction in the past.

Commander White now asked about what happens to children that ORR has determined cannot be safely reunified. This is (all sides agree) a very small group of children. White says that these children become UACs. Rep. Bass asks if the child is put up for adoption. White says no.

Now Rep. Biggs, who says he went down to the border and talked to agents, and highlights stories of children treated poorly at the border by migrants themselves.

Is he implying that family separation wasn't a big deal? Was he ever taught that "Two wrongs don't make a right"?

Rep. Biggs then pulls up a picture of a grave and talks about how "illegal aliens" caused a "permanent separation" to US parents by killing their children.

That is an appalling response to family separation. Dear god.

Rep. Biggs factually wrong that there is an increase "month over month, year over year" in children coming to the country.

There have been three spikes since 2014. Then ebbs. In 2015 and 2017, numbers dropped massively each year.

.@RepCicilline begins STRONGLY: "I reject the notion that we have to make a choice between securing our borders and the hideous policy of separating children from their families. We can secure our borders and keep our country safe and do it in a way consistent with our values."

Rep Cicilline gets Border Patrol Chief Carla Provost to say she disagrees with @DHSOIG and also Judge Sabraw in the Ms. L lawsuit, both of whom have said that DHS had no central way to track separated families at the time zero tolerance began.

Whoa. ICE ERO's Nathalie Asher says she is NOT familiar with the El Paso pilot project, where family separations occurred beginning in 2017 due to a pilot program of zero tolerance. This was reported literally months ago... and she doesn't know about it?

nbcnews.com/storyline/immi…

Now we move on to Rep. Lesko, who "just wanted to throw out some statistics. In April 2017, 1,118 family units [] were apprehended by Border Patorl. But by December 2018, that number was up to 27,518 family units."

Talk about cherry-picking!

Following Rep. Lesko, we move to questioning from @RepRaskin, who asks what the criteria for separating children are.

Provost says they separate for "serious criminal convictions," but there have been allegations that DUIs and illegal entry have been grounds for separation.

Re. McClintock says Commander White was a "Victim of a drive-by slandering" and gives him an opportunity to respond to allegations of an epidemic of sexual assault against children. White says most PREA allegations are unfounded, and that federal staff have never been accused.

Rep. McClintock returns to a common theme; criminals arrested in the US with kids with them get separated too.

The problem with this metaphor?

Parents have access to bail. Many are released within hours or days. And there's no civil detention once the criminal sentence is over.

Rep. McClintock says "Those who are entering the country illegally do have a legal way to apply for entry, they simply choose to break the law.

Rep. McClintock is seriously ill-informed on this point. I'd encourage him to check out our explainer: americanimmigrationcouncil.org/research/how-u…

Now onto @RepJayapal, who begins with a incredibly important palette cleanser to talks about the illegality of crossing the border; that seeking asylum is legal!

As our Managing Director of Programs, @roycebmurray wrote, "It is Legal to Seek Asylum."
immigrationimpact.com/2018/07/17/it-…

Thank you @RepJayapal for also mentioning how the administration is specifically making it harder for asylum-seekers to ask for asylum at ports of entry through metering. We, along with @splcenter and @theCCR have sued CBP over this unlawful practice. americanimmigrationcouncil.org/litigation/cha…

.@RepJayapal now questioning Scott Lloyd as to whether @DHSOIG was right that ORR totally failed to plan for family separation. He says he did, despite many, many reports to the contrary.

Scott Lloyd asked by an indignant @RepJayapal whether Lloyd even ONCE told anyone above him that his own child welfare experts told him that family separation would have serious and deep long-term effects on children. Lloyd says no and Jayapal emphasizes why that's so outrageous.

Now @RepValDemings: "I had a zero tolerance policy too as a police chief. You know who it was for? For murders and rapers and robbers and other people who committed violent crime. Not people trying to get across the border [] just trying to make a better life for their families."

Now Chief Provost admits that prior to the deaths of Felipe and Jakelin, children only got "emergency medical care" and were not necessarily given full medical screenings in the past. This is a serious problem. It put medical referrals fully in the hands of overworked CBP agents.

Rep. Cline asks ICE ERO's Nathalie Asher about what ICE needs. She says that being accused of being the Gestapo or the Klan has a serious effect on agency morale. She notes that her agents take an oath to uphold the law.

Rep. Cline asks about rescues carried out by Border Patrol. Chief Provost highlights the "amazing work" that Border Patrol does in rescuing people. I won't argue that Border Patrol has indeed saved lives. But people die because the legal process is so hard. Deterrence has a cost.

Now Rep. Scanlon introduces a @DLind article into the record.

Congrats Dara, you made it! It's official.

vox.com/2019/2/21/1823…

.@RepMGS makes a strong point that the humanity of families coming here seeking protection have often been erased during these hearings. And it's true, especially with talks of "family units" and language treating vulnerable parents and their kids as a threat.

.@RepMGS goes back, again, to questioning Chief Provost's claims that current separations are just because of serious criminal records, medical concerns, or other issues. Says she went to El Paso and talked with a mom who had been separated with none of those flags.

Now on to @RepSylviaGarcia who asks each witness if they personally raised any objections to family separation. Lots of "No, but" responses

McHenry: No
Lloyd: "I did not say anything along those lines"
Asher: "I did not voice in that exact term"
Provost: [avoids question]

Of course, @RepSylviaGarcia didn't ask Commander White about this because he testified quite forcefully today and previously that he tried to convince his superiors what a disastrous policy it was.

Lloyd, Asher, and Provost's (McHenry wasn't really involved) silence is telling.

We now are on to Rep. Johnson, who begins by asking McHenry about whether increased numbers of families seeking asylum have been a problem. He then talks about high asylum denial rates and (in my belief) falsely links them to the idea that they are "frivolous."

WOW. McHenry reports a completely false claim, not even backed up by his own @DOJ_EOIR data, that only 8 out of 100 people who go through the credible fear process will eventually win asylum. This is based on a completely false statistic. I debunked here:

https://twitter.com/ReichlinMelnick/status/1099018070218153990

That the head of @DOJ_EOIR could get his own data so incredibly wrong is seriously frustrating. Who gave him those numbers? How come he didn't take a look at them and realize they were obviously wrong?

I mean, here's EOIR's own chart! justice.gov/eoir/page/file…

Worth noting on the above, many people don't actually file an asylum application because of structural problems. Asylum applications must be filed in English. Without counsel, many people are unable to do so because of language problems. Here's what I wrote for the ACLU:

As I prepared the above, ICE ERO officer Asher basically implied that people who didn't express a fear to CBP and then express a fear in ICE detention are liars.

This is absurd. CBP has a LONG history, years old, of failing to record asylum-seekers's fear. From a 2005 report:

I missed an entire portion of the testimony from Chief Provost where she was asked about @DHSOIG's report that CBP officers separated some families because they didn't want to fill out the paperwork to reunite them.

She says she'll look into it.

As a follow-up to the 2005 report on CBP failures to record fear, here's a follow-up report from 2016 from the US Commission on International Religious Freedom. uscirf.gov/sites/default/…

Now @RepJeffries continues with questions to Chief Provost about whether family separation was deterrence. Provost says no: "It was not a family separation policy. It was a prosecution initiative."

As Rep. Jeffries points out, DHS Sec. Kelly said it was. cnn.com/2017/03/06/pol…

Now @RepJeffries is just reading statements from Jeff Sessions about how deterrence was the intent of zero tolerance. Commander White agrees that at certain points, it was described to him as family separation policy for deterrence, rejecting Chief Provost's claims.

We move to @RepDean who is questioning Lloyd on his qualifications to run ORR, and castigating him for not speaking out about problems involving family separation. She then asks: "Isn't it true that you tracked the menstrual cycles of young girls in your custody."

Lloyd is a bit flummoxed in response and says that this was tracking pregnant women who were asked when their last period was to figure out how far along in their pregnancy they were. @RepDean is going after Lloyd for his abortion policies now.

Lloyd now DENIES ever having visited a pregnant teenager to personally pressure her into not getting an abortion. Whoa. @brigitte_amiri probably has a lot to say in response to his questions about this. Here's how his involvement was described last year: theguardian.com/world/2018/jan…

Now @RepEscobar says that the trauma of family separation was clear that rejects Chief Provost's claim that there was no family separation policy "We have seen the trauma first hand. It's painful, and we should call it what it is."

Whoa @RepEscobar gets Chief Carla Provost to admit that someone previously convicted of non-violent felony illegal entry will be separated from their child. Provost said earlier that only parents with "serious criminal convictions" would be separated.

Now Debbie Mucarsel-Powell (@DebbieforFL) asking HHS about why is it the for-profit companies are running the new Homestead facility in Florida, a "temporary influx shelter." Commander White says that the company won the contract through normal bidding process.

Had to step away from the thread for a moment. Whew. Come back to hearing @RepEscobar "Thousands and thousands of children were traumatized... Was anyone held accountable."

ICE ERO's Asher: "No"
Border Patrol Chief Provost: "I'm not aware."

Now we go to @RepLouCorrea who muses how much of this oversight is about agencies working for DHS and wonders aloud how family separation was about "homeland security." Notes many DHS employees unhappy about it. "This was no way to protect the homeland," he says.

As @RepEscobar caught me on, I was typing too fast! Illegal entry is ONLY a misdemeanor. Only reentry after a previous removal is a felony.

Importantly, many people's original "removals" are expedited removals w/o an initial prosecution for illegal entry.

https://twitter.com/RepEscobar/status/1100469790261559300

Now onto @RepTedLieu who once again pushes Carla Provost on the family separation pilot program, or as she describes it, a standard prosecution policy that was not about family separation.

Lieu calls the policy "not just immoral and unjust, but also mass incompetence."

And with that, the hearing comes to an end! Four hours. Whoa.

I think there were a lot of similar notes to the last hearing. Some highlights? Chief Provost admitting families are still being separated if a parent has a nonviolent felony conviction for illegal reentry.

Thanks to anyone who has been following this thread during the hearing. If you're interested in checking out more about my organization the American Immigration Council (@immcouncil), we can be found here. americanimmigrationcouncil.org

If you're an attorney and you're interested in finding ways to volunteer or help in ways other than donating (we need your donations too!), please check out the Immigration Justice Campaign, a joint project of the Council and AILA. immigrationjustice.us/home