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Homeland Security chief vows to end 'lawlessness' along border

Sec. Kirstjen Nielsen visits Nogales with McSally, Schweikert

On her second trip to Arizona, Homeland Security Secretary Kirstjen Nielsen once again said the border was in "crisis" and that Trump administration officials are taking steps to "end this lawlessness."

During a press conference Thursday a few miles east of Nogales, Ariz., with the bollard border fence as a backdrop, Nielsen said that the U.S.-Mexico line was being exploited "by criminals, by smugglers, and by thousands of people who have absolutely no respect for our laws."

"This is changing, it will change, and we will do all that we can to change this," Nielsen said, adding that DHS was working to build or refurbish about 150 miles of wall along the southern border, and anyone picked up crossing the border will be prosecuted by the Justice Department as part of a new zero-tolerance policy.

“If you come here illegally, whether you’re single, whether you have a family, whether you’re a smuggler or whether you’re a trafficker, you’ve broken the law so we’re prosecuting,” Nielsen said.

"Right now, as we stand here, illegal aliens, drug smugglers, human traffickers continue to cross our borders illegally because they can, because they do not face any consequences, but that will end," Nielsen said. "We are taking steps to end this lawlessness."

In fact, a program termed as the Consequence Delivery System has been among Border Patrol's law enforcement tools since 2011, which includes prosecutions for illegal entry and re-entry, including Operation Streamline, the Alien Transfer Exit Program, which deports people in different ports along the border. In 2014, at least 15,000 people were prosecuted through Operation Streamline in the Tucson Sector, or about 18 percent of all apprehensions that year, according to the Migration Policy Institute.

Nielsen was flanked by U.S. Reps. Martha McSally and David Schweikert, along with Tucson Sector Chief Rodolfo Karisch, who toured parts of the border in a column of Chevy SUVs, pausing a few times to walk along the dusty border road while a Blackhawk helicopter loaded with members of the Border Patrol's elite tactical unit circled overhead.

The tour followed a "stakeholders" meeting held at a Nogales border crossing, where Nielsen had a closed-door, off-the-record conservation with about a dozen people, including local ranchers, businessmen, the president of the local union of Border Patrol agents, and CBP officials.

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During the stakeholders meeting, McSally said she was glad to partner with Nielsen, and reiterated her support for "her bill" the Securing America's Future Act which was introduced by Rep. Bob Goodlatte in January.

McSally, a Republican, faces tough challenges from border security hawks in her bird to replace retiring U.S. Sen. Jeff Flake.

Just two weeks ago, McSally asked to remove her name from a bill that would have regularized the status of "Dreamers" — young people who were given deferred action from deportation by immigration authorities. In Sept. 2017, McSally signed on to a letter that asked House Speaker Paul Ryan to move forward on the bill, arguing that "Congress has a responsibility and a duty to address this problem legislatively" and that the status of DACA recipients "should not be left to the political winds of different administrations that come to power."

McSally said Securing America's Future Act would, in addition to providing billions more in border security, and the hiring of thousands of additional customs officers and Border Patrol agents, end "loopholes that cartels are taking advantage of."

Nielsen said she wanted to talk to people in Nogales to hear from them how "the lawlessness and insecurity at our border affects them directly."

Reporters were allowed in the room for a few minutes to take photographs and hear introductions from McSally, Nielsen, and Schweikert.

During this introduction, Nielsen noted that while many Americans view the border as an "enforcement zone," it's also a place where people live and work. "It’s really important to look at the border state by state, region by region, to really understand what’s happening," she said.

'Misinformation campaign'

However, hours later, in an area known as "Smuggler's Gulch," Nielsen dropped this conciliatory tone, and launched into a full broadside against critics of DHS practices, including members of Congress and the media.

"But in the last couple weeks there truly has been a massive, just dishonest information campaign," she said. "And, it's being waged against the men and women of DHS. It's a misinformation campaign being waged by those who either harbor an unfounded distrust of CBP and ICE officers, or who just don't want to see us secure our border," Nielsen said.

She called on Congress to "fully fund the border wall system," and argued that members of Congress and the media "attacked" DHS law enforcement officers for "doing their job."

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Last week, the American Civil Liberties Union released a report compiling thousands of pages of documents secured as part of a Freedom of Information Act lawsuit that the group said showed that during the Obama administration dozens of unaccompanied minors reported physical, mental and sexual abuse while they were detained by CBP, and that there was little evidence that officials meaningfully investigated such claims. 

Such claims are long-running, and have involved multiple lawsuits, including a class-action lawsuit over the conditions of Border Patrol facilities in the Tucson Sector. Late last-year, the Ninth Circuit Court rebuffed an appeal from the government to halt a decision from a federal judge, who ordered the agency to provide blankets and sleeping mats to immigrants held more than 12 hours.

Children 'not lost, just don't want to be found'

The 1,475 undocumented children reportedly unable to be located in the federal system “are not lost,” Nielsen told reporters Thursday, “they just don’t want to be found.”

The Department of Homeland Security is under fire by immigration advocates after Attorney General Jeff Sessions announced the Trump administration’s decision to criminally prosecute all people caught crossing the border between ports of entry, including those seeking asylum or those crossing with children.

“If you are smuggling a child, then we will prosecute you, and that child will be separated from you as required by law,” Sessions said in early May.

In response to questions about these children, who were reported missing in April, Nielsen said, “Those children are not lost. Unfortunately, we have a system where these children are placed with families who themselves are illegal aliens. They’re not returning phone calls. They’re not lost; they just don’t want to be found.”

Her comments followed a tour of the state's border with Mexico on Thursday as part of a tour that took Nielsen to visit U.S. CBP facilities in Douglas and both the Mariposa and Dennis DeConcini ports of entry in Nogales.

Last week, Nielsen also visited facilities in El Paso and Santa Theresa, N.M.

This is the tenth time she has visited the border since joining DHS, Nielsen said. 

During the press conference near "Smugglers Gulch," both McSally and Nielsen argued that Congress should work to end "legal loopholes."

While administration officials have largely used the term without explanation, during a hearing last week, McSally gave out a list of the so-called loopholes. 

This includes the Flores settlement, an agreement made between the government and plaintiffs following a 1997 lawsuit on the treatment of children in detention, and the Trafficking Victims Protection Reauthorization Act, a 2000 act of Congress designed to protect victims of human trafficking, which limits DHS from promptly returning unaccompanied minors to their home country if they from anywhere besides Canada or Mexico. This includes unaccompanied minors fleeing violence in El Salvador, Guatemala, and Honduras, where around 25,000 children have fled to the United States so far in fiscal year 2018.

Also included is Zadvydas v. Davis, a 2001 Supreme Court decision which said that the U.S. government cannot hold an immigrant in indefinite, potentially permanent detention and thus release an immigrant after six months if their home country will not accept their return.

During the press conference, Nielsen agreed. "There's a long list," she said, and referred to McSally's statement following a congressional hearing, however, she said that the Flores settlement and TVPRA, that have "eliminated our ability to properly enforce the law effectively."

Because of the way the court cases and the laws are written, DHS is required to treat people from Mexico differently from other countries, Nielsen said. "We want to apply the law equally to all, we're not exempting particular classes."

McSally jumped in, adding that while people may be "legitimately" seek asylum, "often it's a very small number" who succeed, she said. "But the way the law is written, all the have to say is a few key words," and they are allowed in the country. Later, the "vast majority" don't show up for that court date.

This means the "legitimate claims" are getting lost in the system, McSally said.

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“What (migrants) have learned is if they just say these words, then they’re immediately allowed to be sort of released into that system and because of the backlog of cases that sometimes is taking years now which is then impacting those who are truly asylum seekers,” the Republican congresswoman said.

“We are just raising the threshold, not so high that it can’t be achieved, but raising it so it’s just not saying these two words.”

However, according to data compiled by Transactional Records Access Clearinghouse, a Syracuse-university based database of federal records, denial rates on asylum cases over a five-year period range significantly, from as low as around 2 percent to nearly 94 percent depending on the judge. And, the odds of winning asylum is tied to representation, TRAC found.

Moreover, data from the Executive Office for Immigration Review shows that "in absentia rates" for people released after custody hearings peaked in 2002 at 47 percent and have fallen despite an increasing number of people released on bond.

This fits with data from the Bipartisan Policy Center, which found that failure to appear rates spiked in 2005 and then dropped through 2012.

On Wednesday, McSally presided over a House Border and Maritime Security subcommittee field hearing held in Phoenix on the role of an unsecured border in the opioid crisis, adding that CBP officials have seized increasingly large amounts of heroin and fentanyl.

Schweikert said this border security was necessary for a "holistic solution" to the opioid crisis and "part of the solution is right here because this is not just an Arizona crisis or a border crisis, it’s a national crisis."

Also Thursday, the Arizona House Democratic Caucus sent a letter to Nielsen requesting a reversal of the policy, with a special request to re-evaluate it “particularly for first-time undocumented entries and on credible requests for asylum.”

Rep. Charlene Fernandez, Democratic whip of the Arizona House of Representatives, who co-authored the letter said, “We know she’s in a tough situation.”

However, she urged Nielsen to request the Arizona Department of Child Safety become involved in this type of policy decision.

She said the words “asylum seeker” are what make this part of America’s past so noble.

“When people present themselves at the border, we help them,” she said.

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Cronkite News reporter Rachel Beth Banks contributed to this story.

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Paul Ingram/TucsonSentinel.com

DHS Secretary Kirstjen Nielsen and U.S. Rep. Martha McSally speak with Kevin Hecht, deputy patrol agent in charge, east of Nogales.