Letter from Rep Mike Kelly on Separation of Children from Parents at the Border

As a follow up to my call last week and an email on the same subject, Rep. Mike Kelly sent this email to me answering whether or not there is a law requiring the separation of children from asylum seeking families. See this post for my answer from his staff.

June 15, 2018

Dear Mr. Throckmorton,

Thank you for contacting me with your concerns regarding President Trump’s zero-tolerance policy for criminal illegal entry into the United States. I greatly appreciate that you have taken the time to contact me on this important issue.

In April of 2017, Attorney General Jeff Sessions issued a memorandum for all federal prosecutors with instructions to follow when prosecuting cases related to illegal immigration. Congress has already codified many of these actions, which have been sporadically applied over the years. This includes prioritizing cases involving the unlawful transportation or harboring of aliens, especially when the individual was illegally brought into the United States to facilitate future criminal activities. The memo also directs prosecutors to pursue cases involving entry into the country by individuals who have already been convicted for illegal entry in the past, especially when the defendant has a criminal history, gang affiliation, or other aggravating circumstances.

Since 1997, it has been U.S. policy to release undocumented immigrant children rather than hold them in federal custody while their cases are considered. Children are released first to their parents if possible, to other adult relatives if not, and to licensed programs if no relatives are available. This policy was confirmed in 2015 by the U.S. Court of Appeals for the Ninth Circuit, which clarified the requirement for the federal government to quickly release undocumented children, regardless of whether they were apprehended at the border alone or with family members, and even if their parents are facing criminal proceedings. Under the Administration’s memorandum, immigrants who are prosecuted for crossing the border illegally will be able to apply for asylum, but may be detained while their cases are considered. If granted asylum, any conviction for illegally entering the country is vacated. Families who do not illegally enter the country and instead use the legal process of requesting asylum at ports of entry are kept together while their request is processed.

The United States has the world’s most generous immigration system – one which attracts individuals and families from around the globe seeking security and their own experiences of the American Dream. While we should continue to draw on this spirit of acceptance and understanding, this cannot come at the cost of violating the U.S. rule of law. Children should not be subject to detention in federal custody, but failure to prosecute crimes related to illegal entry only encourages further criminal activity, endangering the lives of immigrants and U.S. citizens alike.

A recent report by the Department of Homeland Security showed a 315% increase in illegal aliens fraudulently using children to pose as family units to gain entry into the country in the past two years. These individuals have attempted to take advantage of previous leniency to commit horrendous crimes like human trafficking. It is critical that the United States maintains the rule of law and discourages future criminal activity while maintaining our status as a welcoming nation for unjustly persecuted persons and those in countries of conflict. Rest assured, I will continue to monitor this situation and will keep your thoughts in mind should any relevant legislation come before me for a vote.

Again, thank you for sharing your thoughts on this important issue. Please do not hesitate to contact me or my staff if I can be of assistance in the future. It is an honor and a privilege to represent Western Pennsylvania in the United States Congress.

If you would like to hear more from me on this issue and others, please subscribe to my newsletter at www.kelly.house.gov.

Sincerely, 


Mike Kelly
Member of Congress

I continue to look into the specifics of this tragedy. A briefing by the Dept. of Homeland Security on Friday revealed that nearly 2,000 children had been removed from their parents, some of which were from asylum seeking parents.

I followed up with a specific question asking about a law (there isn’t one) and whether or not he might be mistaken about asylum seeking families being separated. According to news reports, such families are experiencing separation no matter where they present themselves. I intend to keep an open mind, however, because there are so many conflicting reports.