As the secretary for the Department of Homeland Security (DHS), Kirstjen Nielsen implemented the monstrously cruel “zero tolerance” policy, under which the US government separated thousands of migrant children from their parents at the US-Mexico border with no plans for how to reunite them.
She sought to limit the number of people allowed to seek asylum in the US – although under international law any migrant who says they are fleeing persecution is entitled to have their asylum claim considered – forcing thousands of asylum-seekers to wait in Mexico for the duration of their asylum proceedings, despite the grave risks that vulnerable migrants face in Mexico’s violent and crime-ridden border cities.
Under Nielsen’s watch, the number of people held in immigration detention has risen to record-levels. The number of migrants detained on any given day by Immigration and Customs Enforcement (ICE), which falls under Nielsen’s Department for Homeland Security, rose to an unprecedented 50,000 in early 2019. Among those held are babies and children, some of whom have languished in dangerous detention centres for months or years.
Even so, the most aggressive head of the Department of Homeland Security ever was not aggressive enough for the president, or for the anti-immigration extremists in his administration, such as Trump’s far-right policy adviser Stephen Miller and national security adviser John Bolton.
Nielsen resigned as head of DHS on 7 April, after being pushed out by the administration’s immigration hardliners and after coming under repeated criticism from Donald Trump. The president was reportedly furious to learn that the number of migrants crossing into the US from Mexico rose to 100,000 people in March this year, and frustrated by Nielsen’s reminders that international law, and America’s domestic legislation, prevents her from, say, completely closing the border to asylum-seekers. According to NBC, Trump also tried to pressure Nielsen into reinstating family separations.
As the House Speaker, Nancy Pelosi remarked, “It is deeply alarming that the Trump administration official who put children in cages is reportedly resigning because she is not extreme enough for the White House’s liking.”
Her resignation followed days after Trump also withdrew his nomination for the head of ICE, saying that he wanted to go in a “tougher direction” on immigration. The withdrawal of Trump’s nomination of Ron Vitiello, who has been the agency’s acting head since August, has also been attributed to pressure from Miller.
Until Nielsen’s successor is picked, the commissioner of US customs and border protection, Kevin McAleenan, will act as DHS head. The unfilled leadership positions at ICE and CBP will give Miller an opportunity to fill the power vacuum and pull immigration agencies in an even tougher direction, the New York Times warned. “Kirstjen Nielsen enforced cruelty at the border. Her replacement could be worse,” the newspaper’s editorial board argued.
Although it’s not exactly reassuring, it’s hard to conceive of how much worse Nielsen’s replacement can be. The zero tolerance policy, which was eventually struck down by the courts, shows how much harm the administration can inflict even when its actions are determined to be illegal – some of the children separated from their parents may never see them again, other families may not be reunited for years, for both parents and children the trauma of their separation may last a lifetime.
But it is also a reminder that the administration does not have a free rein on immigration policy. Trump may not like it, but he has to follow the law. Some of Nielsen’s other policies, such as her attempt to block migrants who did not enter the US at official ports from seeking asylum, were also struck down by the courts. The president can try to appoint someone more willing than Nielsen to break the law, but eventually he’ll come up against the courts again.
As Dara Lind points out in Vox, it’s not clear what a new head of Homeland Security can do to fulfil Trump’s demands because the US cannot completely close its borders, or deny asylum-seekers due process.
That 100,000 people crossed into the US despite the Trump administration’s hostile rhetoric and inhumane policies demonstrates the limits of deterrence: when people are desperate enough, they will come to the US anyway.
It’s not uplifting, though in the Trump era it may count as optimism, to argue that despite the president’s pledge to be “tougher” on immigration we’re more likely to continue bumping along the rock-bottom, regardless of who succeeds Nielsen.