Rosenstein: Zero tolerance immigration policy ‘never should have been proposed or implemented’

Former Deputy Attorney General Rod Rosenstein said on Thursday that the zero tolerance immigration policy briefly used under the Trump administration “never should have been proposed or implemented.”

Rosenstein’s statement to The Hill came shortly after the release of a Justice Department watchdog report that was sharply critical of officials it described as the “driving force” in instituting the 2018 policy that resulted in thousands of children being separated from their parents. 

“Since leaving the department, I have often asked myself what we should have done differently, and no issue has dominated my thinking more than the zero tolerance immigration policy,” Rosenstein said in a statement. “It was a failed policy that never should have been proposed or implemented. I wish we all had done better.”

The report from the Justice Department’s Inspector General aimed to detail how the zero tolerance policy was instituted and concluded that the top officials in the department, including then-Attorney General Jeff Sessions, knew it would result in family separations. 

Under the zero tolerance policy, all adults who illegally entered the U.S., including those with children, were referred for prosecution, leaving any children in the custody of the Department of Health and Human Services (HHS). The inspector general concluded the Justice Department did not coordinate with U.S. attorneys, judges or HHS, and its officials did not listen to concerns about the policy. 

“We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations,” the Inspector General’s report said.

Rosenstein, who left the department in May 2019, was mentioned in the report as being present at an April 2018 meeting with Sessions in which they “both expressed a willingness to prosecute adults in family units if DHS [Department of Homeland Security] made the decision to start referring such individuals for prosecution.”

After some U.S. attorneys expressed concerns about the program, former U.S. Attorney for the Western District of Texas John Bash passed along that Rosenstein told him “we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child,” according to the report. 

Bash’s notes from the call indicate that Rosenstein told him, “AG is clear: Prosecute parents if DHS decides to separate families; use your prosecutorial discretion w/r/t [with regard to] illness, language issues; no categorial decisions w/r/t [with regard to] age; fact-based decisions ok.”

Justice Department lawyer Gene Hamilton placed the blame for the policy at President Trump and Department of Homeland Security Secretary Kirstjen Nielsen’s feet.

“If Secretary Nielsen and DHS did not want to refer people with minors, with children, then we wouldn’t have prosecuted them because they wouldn’t have referred them,” he said. “And ultimately that decision would be between Secretary Nielsen and the president,” Hamilton told the watchdog, according to the report.

A court filing this week indicated that pro bono attorneys looking for separated children’s parents have not yet tracked down the parents of 611 children, NBC News reported. The lawyers predict the parents of 392 children have been deported. 

President-elect Joe Biden has committed to creating a task force to reunite these families and to have the Justice Department conduct an investigation into the results of the policy.