Citing Evidence that ‘Bad Faith’ Drove Family Separations, Federal Court Authorizes Deposition of Former DHS Secretary Kirstjen Nielsen

Image by: Michael Fleshman

Special to the Vanguard

San Francisco, CA – The United States District Court for the Northern District of California authorized migrant families separated at the border in 2018 to depose former Department of Homeland Security (DHS) Secretary Kirstjen Nielsen regarding the Trump administration’s notorious family separation policy.

The government has maintained in court that family separation was an unintentional byproduct of a “Zero Tolerance” prosecution initiative, rather than a purposeful strategy to treat families cruelly. Contrary to that position, Judge Kandis A. Westmore found an “abundance of evidence … indicating that the actual intent of the Zero Tolerance Policy was to separate families to deter illegal immigration.”

Judge Westmore concluded that the migrant families had demonstrated the requisite “bad faith” by DHS to justify the extraordinary step of deposing a Cabinet secretary.

The three plaintiff families in P.G. v. United States fled persecution in Central America, hoping to exercise their right to seek asylum.  After they crossed into the United States, the government forcibly separated the parents from their children without notice or explanation.

The parents spent many weeks in inhumane detention conditions, not knowing if they would see their children again. The parents and their children sued the U.S. government in 2021.

In September 2023, the court granted a request by the plaintiff families to depose former Secretary Nielsen to answer for her role in creating and implementing the family separation policy.

In October, Ms. Nielsen sought to avoid a deposition by filing a motion challenging the deposition subpoena.

The ruling on that motion authorizes the plaintiff families to take Ms. Nielsen’s deposition through a series of written questions. If a written deposition proves inadequate, the order directs the parties to attempt to reach agreement on a limited oral deposition and, failing that, to bring the issue back to the court for resolution.

Among other evidence of “bad faith” by DHS, the court’s order cites an April 24, 2018 legal memo prepared by then-DHS General Counsel John Mitnick for former Secretary Nielsen, titled “Criminal Prosecution of Aliens Who Entered Unlawfully: Legal Guidance on Potential Separation of Family Members.”

An unredacted copy of that memo, introduced in federal court for the first time by the P.G. plaintiffs in September 2023, revealed that Mr. Mitnick advised former Secretary Nielsen that by referring parents for prosecution, “it would be legally permissible to separate minors from adult family members.”

The court’s order explains that such prosecutions “resulted in separated children being placed into literal cages, where they were forced to sleep on the floor with Mylar blankets and denied the most basic of care.”

The order observed that “[w]hen these atrocities were being inflicted on children, Secretary Nielsen was on record saying that the children were well cared for, and she repeatedly denied that they were being housed in cages despite media coverage showing the contrary.”

A trial before Judge Westmore is scheduled to begin on May 6, 2024. The plaintiff families are represented pro bono by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, the ACLU Foundation of Northern California, and Keker, Van Nest & Peters, LLP.

The order can be found here.

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