Zero Tolerance: Ronald Vitiello Interview | FRONTLINE

>>So, Ron, I know we talked a little bit about 2013, comprehensive immigration reform that’s happening in the Senate. We talked to Sen. [Dick] Durbin yesterday, who said that was really sort of the moment that they were really close to getting something passed. I know you’ve got some feelings about how much Congress has done on immigration. But that particular moment, do you remember feeling as optimistic, maybe, as Sen. Durbin seemed to feel, or what do you remember about that time period? >>So I would have been the deputy at Border Patrol inside of CBP [Customs and Border Protection] at that time, and what we were working on was understanding that if this deal came forward that there was going to be a security element to it. And so we were preparing ourselves to understand if there was going to be an initial investment, if they were going to put money at border security, what we were going to spend our efforts, whether that be infrastructure, growth of the workforce, those kinds of things.

>>You were preparing? >>Correct. >>And did you—- >>At the headquarters level, right? So in the field, it wasn’t yet tactical, like, “Hey, we’re going to grow, and you’re going to need to understand that.” But yeah, at the headquarters, we were preparing for, you know, additional funding that would come along with the package. >>It looked as though things were progressing, that it could happen? >>We were preparing in either case. I didn’t have a sense for what the politics looked like, but there was a lot of discussion at the departmental level that essentially said, “You need to be ready if this happens,” so we could move on. I think there were going to be some benchmarks, some security requirements as this thing rolled out. >>And ultimately what happens? It passes the Senate. It dies shortly after. I mean, there’s—it’s not taken up in the House. It goes nowhere. Do you remember sort of feeling surprised by that? >>Not a lot. The nature of the headquarters is you sort of go through these cycles.

And this was a planning effort, a cycle that said if then we would have this kind of investment, this is where we’d spend our time and effort. >>So you weren’t surprised when it died? >>No, not really. >>Yeah. Your hopes for Congress being able to move on immigration reform generally at that point? >>Yeah. It wasn’t as critical as I would say now. Right now the problem is much bigger. But the discussion around reform and the “Dreamers,” and so that—in that time frame, we’re very concerned about the number of children who were coming to the border. It started in 2012. As the discussion about a reform was going forward, then you could see— we could see the numbers creeping up. >>And what was happening, 2012? What were you starting to see? >>We were starting to see larger numbers of children coming alone. And then that sort of morphed over time. Then it became families with children, and the apparatus— so the tactical level, Border Patrol stations not equipped for this kind of population.

These were built, even after the 9/11, the surge in hiring that we did 2006 through 2010, those Border Patrol stations, the new infrastructure that was put online was for the problem that existed before, single adults, mostly from Mexico. We started to see the tide shifting from, you know, Mexico being less of a contributor, in some locations. The Rio Grande Valley was sort of the hotspot for— it always has been for people who are not from Mexico. That’s where they choose to cross. It’s closer to Central America than the rest of the border, so there was always a problem there. And it had just become bigger and bigger through ’12, ’13, and then ’14 was sort of the peak of the problem in its worst form. >>And that was just—that was families— that was families in numbers that you’d never seen before? What did that look like? >>Children alone and families, yeah, in ways— in ratios we’ve never seen before and in numbers we haven’t seen before.

That was the only demographic, if you will, that was rising. In fact, I think if you look at the numbers for Mexico during that time frame, it started to fall off. >>What was the signal you thought these guys were getting from American policy at the time? >>It’s interesting. I think that there was a belief—and we had sort of anecdotal and intelligence reporting that said that people in the Northern Triangle [Guatemala, Honduras and El Salvador], smuggling organizations were encouraging people to come because if they make a deal, you’ll be in before they draw the line, whatever the cutoff would have been.

And so there was a lot of discussion about, you know, why are people coming now? What are the conditions in those countries? And I think the government for quite sometime was confused about why. And then as the secretary [of Homeland Security] tasked us to do interviews, and we were taking samples of folks as they were being arrested, we quickly found out that they believed that there was going to be an opportunity for them to stay in the United States if they brought their children. >>Jeh Johnson was secretary at the time. He had a good sense of this transition that was happening in terms of who was coming? >>We were all very concerned. No one had seen what we were seeing at that time. And so he was very concerned. There were a number of meetings which he hosted to try to figure out what to do. Was this a spike, or was this a trend that was going to continue and was asking folks at CBP, myself, the leadership there, “What can we do?” ICE [Immigration and Customs Enforcement] was in the room. We were talking to folks at CIS [U.S.

Citizen and Immigration Services]. There was a concentrated effort in his boardroom to try to figure out what to do. >>And what did you want? >>Well, we told him what our experience was. In 2011, CBP, the Border Patrol, set out an effort to understand and classify all the arrests that we had made and then what to do post-arrest, as it related to consequence. At that time, we called it the Consequence Delivery System, and what we did is classify each of the arrests and then watch recidivism rates based on the post-arrest activity that the government would have.

So that’s prosecutions, setting people up for deportation hearings, holding them in custody. And we watched and could see what the effect of those post-arrest consequences were on the flow itself, on recidivism of people who had come back to the border. And that was also—so my long-term experience, every time the government had applied a consequence in the case of Central Americans, once they’re held in custody until removal, then the numbers start to drop at the border. And so that was the solution that was designed. He asked us for our input; those were the— that was the information that he gave. He held two important meetings that I just was coincidentally lucky to have had to attend. Because the leadership wasn’t available, they sent me in as CBP’s representative. He did a meeting of all the former secretaries and all the former leaders at CBP, ICE and the department, his colleagues. And there were a number of things talked about: their experiences, the growth of the department, what he could do, what tools were available. And then he did another equally big meeting of nongovernmental organizations to try to understand what was happening in their view of this, and then what the government should or could consider to solve the problem.

And essentially, if you boil down what each of those disparate groups told him was the system has to work. People have to have their due process opportunity, and then if they’re not successful in getting relief on the immigration side, then you have to get them removed. They use sort of different consequences and different outcomes, but essentially we all knew that the system wasn’t capable of continuing to handle numbers of this size. And then ICE at the time was not equipped to do large numbers of families in detention, and so the recommendation to him through ICE with our concurrence was you need to establish a family detention center. And if you take people into custody and hold them during the pendency of their proceedings, and remove them or give them relief in the process, and that would start to—the numbers would start to decline. That was our experience. That’s been my experience my whole career. >>And the idea behind that, is it deterrence? Is it—? >>It’s just a—there’s a certainty to it. If people can get relief, then they get relief.

But if not, they’re sent home, and then the word gets out, right? The word in 2014, what’s happening now in real time, is people are encouraged or enticed to come because there’s really no downside to it. When we established—when the department established family detention and ICE started to run that, we saw the numbers decline dramatically. The word got out that, you know, the consequence is different if you come with—even if you come with your child, you’ll have a hearing, and if you don’t have a meritorious claim for asylum, then you’re going to be sent home. And then the flow starts to decline after that. >>The old system of bringing your kid was not going to— was not going to fast-track you through the system.

This was a— >>Correct. Correct. ICE built that capacity; the Department of Justice immigration courts responded to that. They set up a docket for the family detention centers, and we saw the numbers decline. >>I’m going to jump ahead now to the campaign, the 2016 campaign, specifically candidate Trump at the time, who’s got a very different position on immigration than some of the other Republican candidates at the time. You’re seeing some of the rhetoric about immigration, and what do you think about how he’s addressing the issue? >>Well, I think he did what I’ve seen happen sort of in a campaign scenario.

He was highlighting border security. He was highlighting the need to do immigration enforcement in a way, probably, that I hadn’t seen in my career. I mean, he did a lot of things in the campaign that we had never seen before, and that certainly— he brought what was always in the sort of top five list, he brought it to the forefront. >>And the message that he sort of brought with immigration, was it something that resonated with you? Is it something that you felt spoke to the agencies specifically? >>I would categorize what he was saying was is he was trying to meet the demand that the public had for border security.

I think there was an unmet need that the public has had, in my experience, for quite a while. Certainly in the post-9/11 environment, people said, “Hey, we’ve got to do this differently; we need to protect ourselves.” And even in the discussions about comprehensive reform, there’s a border security element always talked about. He talked about that exclusively, maybe not necessarily tying it to a broader reform package. From my experience, he wasn’t asking for something that I hadn’t been working on my whole career. >>Let me ask you about, you know, they win; there’s the transition period. During the transition, what sort of plans are being designed around border security? Is the White House sort of reaching out to you during this period of time? This is all transition. >>We were preparing for transition, you know, based on the guidance from the department, right? There was going to be a handoff. But we had started in, I would say, September, the leadership at CBP said, “Hey, something’s going to happen here; one way or the other, we need to be prepared to understand,” like we were preparing in 2013, that there might be an investment in border security.

And so we set out on a project to—what eventually turned into the Border Security Improvement Plan, but it was basically a list of things that if there was going to be an investment in a broader border security package, then we would understand where we would make those investments; how we would grow the workforce; what capabilities we would ask for— infrastructure, technology, all the things that are required for a secure border.

>>… And how is your work received within the administration? >>Well, at that point we were just starting. We were putting plans together. So I feel like they were unaware until they took over in January. I mean, we understood that we were ready to go once the new cadre of leadership was known to us, that we would be prepared to brief them on what we had done up until that point. >>Did you get a sense in some of those early meetings in January that the administration, they got this, they understood this issue and were pretty plugged into your plans? >>Yeah, we were optimistic that we were prepared for this candidate, now the president, who ran on, you know, securing the border and effective immigration system. We knew that—we felt like we were prepared. And then, you know, the idea of the infrastructure, putting a wall up, was something that was well known to us.

We had done that for the 2006 time frame, Secure Fence Act. So we had experience; we had an understanding of what it might cost; we had an understanding of what our priorities would be as far as where would we go first. >>And there’s a guy at the White House who’s— or I should say DHS, sorry— who’s working with Secretary [John] Kelly. Gene Hamilton is his name.

He’s pretty instrumental in the transition. Is this someone you’re dealing with around that time period? >>Yeah. So my first trip to the border with the secretary, Gene was like his right hand as far as an adviser, so we got to know him during that time frame. >>Tell me a bit about the trip with the two of them. >>It was—like I said, we were optimistic we were going to grow.

We went to San Diego, Nogales; maybe there’s someplace in between. But essentially it was us showing him, Secretary Kelly, the infrastructure, what we had done previously, where we wanted to make improvements. He did employee engagement, which was really fascinating. There were a lot of former soldiers that had served with him while he was still in the Marine Corps. That was interesting to see. And then San Diego was a place where you sort of have the right mix in that first 16 miles of the border of robust infrastructure, technology, and then agent deployments are fairly flush.

And so we wanted him to see what that looked like. They’ve kept one of these cross-border tunnels open in that infrastructure to show what the countermeasures are, what the cartels were capable of. And so he got sort of a deep dive in what that looked like. And then he did some engagement at the state and local level, sheriffs and local police officials, law enforcement. So we did roundtables in San Diego and Nogales. >>And immigration is kind of new for him at this time period. Gene Hamilton is somebody who’s coming out of ICE, knows the bureaucracy, knows the agencies very well. What’s—what’s the dynamic like between the two of them? >>It was clear to me that Gene was his adviser on the parts of the law and how immigration worked in practice, you know, based on his experience and what he knew about it. But essentially, he was advising him on the legal frameworks that existed and where the pain points were as far— as it related to the system.

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>>And Secretary Kelly’s understanding of some of these systems at the time? I mean, this is sort of a crash course and a tour pretty early in the— >>Yeah, I remember him making comments about how he understood the investments we had made in the infrastructure; we sort of knew the terrain. He kind of got that instinctually from his experience, and then a sense of confidence that we were prepared to elaborate, right, replace where the old wall and fencing were inadequate, how we integrated the technology, that we weren’t going to ask just for a barrier.

We were going to ask for a multitude of things that not only help protect the border, but, you know, over the long term was sustainable. And so he expressed a sense of understanding of— that we kind of got it. One of the comments he made is like: “You guys know terrain. I can see that clearly from how this is all laid down.” >>And did you get a sense that he was pretty aligned with the president in terms of the wall, in terms of immigration policy at that time? >>No question. >>And Hamilton, I imagine, in the same camp, or—? >>Yeah, he was—like I said, he had sort of that tactical experience, and now he’s, you know, at the Cabinet level, he was an adviser, and so he clearly knew what direction we were headed. >>Are there other advisers that you’re engaging with early in the administration? Stephen Miller? Steve Bannon? >>No, I’ve never had a conversation with Steve Bannon. Steve Miller later on, as I became the deputy commissioner— acting deputy commissioner and then acting director. >>What about this time? Not yet? >>No.

>>OK. And so very quickly, they issued the travel ban. I’m curious to know what message you felt like that sent pretty early out the gate. I mean, they’re prioritizing immigration in a way, I think within the first several weeks of the administration. >>Yeah, I think they issued the border security planning or implementation executive order on the 25th. There was also improving immigration enforcement and accountability, also on the 25th. And then right before or right after that, the restriction on those seven countries, the so-called travel ban. >>Again, the message that these EOs send? >>Well, it was confirmation that things were going to change for us; that the intensity around the work that I did as the deputy of the Border Patrol and then eventually as the acting deputy commissioner was going to be one of the primary focuses of the administration.

>>Were you briefed on the travel-related EO? >>I didn’t have a role in the travel piece, right? I was in CBP, in the Border Patrol at the time. And so sort of I could see it from the periphery, but the implementation for that was heavily focused on CBP, but it wasn’t something I was involved in day to day. >>Was there any sort of surprise to you when that came out, or it was expected? >>I wasn’t surprised.

In fact, the trip we took with the secretary was— I think it was the second day of implementation, right? There were a number of protests outside of certain airports, and I remember him relating as we were traveling that he had gotten, you know, several briefings, calls. He was talking to people about how it was playing out. >>How was he responding to the rollout? >>I think that he was ready for sort of the intensity around the issues of immigration.

I think lots of people—Gene, myself, the commissioner at the time—like anything, this is difficult. When you’re talking about immigration, you’re talking about people, people’s relatives; you know, their fathers, their kids, their grandparents, etc. And so that’s difficult. And this was maybe his first blush at that intensity and what it meant. >>… What are you seeing under Attorney General [Jeff] Sessions? Give me sort of a sense of his views on the needs for bringing integrity back to the system. There’s a real change in what’s happening at Justice, and you’ve got somebody who’s pretty clear in his views about immigration. >>Yeah, I actually did a border tour with him as well. We went to Nogales and did a helicopter ride, showed him the activity at the port of entry, what happened on the line in Nogales.

He did some press right after, and he basically confirmed kind of what we had expected where we were going. He was going to focus his resources and prioritize securing the border, immigration enforcement in a way that, you know, as a Border Patrol agent, we were eager to see how that was going to play out. It was kind of changing the policy about what gets prioritized, because in the tactical sense, in a place like Nogales, the U.S. Attorney’s Office and the Assistant U.S. Attorney’s Office, they have finite resources and a finite kind of capability. And reorienting them to help with the border situation was something that we were interested in, because we recognized, as I said before in that 2011 initiative, we look at consequences, and prosecution is one of those consequences that reduces the flow, reduces recidivism of people at the border. And at that time, there was a real spike in assaults against agents. And he was also very concerned about that and wanted to make sure that his offices were responding to that. >>Did you get the sense from him that he was really here to shake things up, that he was really interested in making changes pretty quickly? >>Yeah, because once we were able to classify the arrests and look at recidivism, the next step in that would be to have a mature discussion about the data with the Justice Department.

And I could clearly see that we were going to have receptive folks in his chain of command that were going to be eager to see the data and see what it meant as it related to border security. >>How did you know that? >>Just his—his—when he did the press, when he talked to the public, when he talked to agents about how he was going to assist, he was clear that this was going to be a priority of the administration, and he definitely adopted that. >>… Also around this time period, Sessions is taking on at Justice a lot of, you know, immigration work. … Does it feel very fast-moving? Does it feel like there’s a flurry of activity coming out of Sessions? >>It was very different. You know, we were all trying to respond and understand with—you know, at the time, in the early days of this administration, all the way through the spring, the activity at the border was kind of dropping off.

That’s why the spike in assaults against agents was concerning, right, because we have less activity, but then you had this other condition that we were very concerned about. And so it was clear to me that he was going to focus on that, including changes as required in priorities for prosecutions and other things that we were eager to take advantage of at the border. >>Yeah, you really had somebody in the Justice Department who understood what the needs were and wanted to get you resources. >>Correct. >>… Let me ask you about the surge. There’s—now you’re seeing further into the administration an uptick in numbers. Talk to me a little bit about— is that in response to maybe some of the early EOs? Why are you seeing this increase, all of a sudden, in the numbers at the border? >>Some combination of nothing changed and increased push or pull factor, and then so people started coming to the border again—children alone, families with children.

And then quickly the demographic figured out that nothing had changed, that the law and the loopholes that existed when they bring their children to the border were still there, and so April, May, June, it just starts to increase, and it hasn’t stopped since. And so people figured out, you know, the smugglers figured it out, and the word got out in the Northern Triangle that if you brought your kid or sent your kid to the border, they were going to be released into the country. >>Sounds like everyone figured it out except Washington. >>Yeah, that’s right. >>Why do you think that is? >>I’m not sure. I mean, we spent a lot of time in the early days of the administration talking to the press in a way that I had not done in my career, and briefings on the Hill with the secretary, with my colleagues in ICE and CIS, to all of the committees of jurisdiction asking for relief on the Flores settlement agreement and how TVPRAs [Trafficking Victims Protection Reauthorization Act] operationalize for children, because we saw the numbers increasing, and there was nothing in my experience that told me that this was going to stop.

And there needed to be a legal change. We expected that legislation was the only way it was going to get us out from under this problem. >>And did you get an audience at the White House around this time as well? >>There were a number of meetings at the White House in which, you know, the priorities for changes in immigration law, like—I don’t want to speak for them, but it seemed like, “Here’s our package; here’s our list of things that if we go forward with an immigration package, these are the things that we’re going to want in it.” And then from the CBP perspective, that was money for infrastructure including a wall, technology, additional agents, more capability at the line.

So we were focused on understanding what that was looking like. And those meetings were about here’s what the president’s prepared to ask for, and we were commenting on whether we thought it would solve the problems that existed. >>And who were in those meetings? >>It was the folks that have responsibility in the immigration continuum, so it would have been the secretary either with or without assistance from CBP, CIS, the Justice Department, the legal team, chief of staff, that kind of group. >>And is there a feeling from the White House advisers that there’s frustration about how things are going? >>I wouldn’t call it frustration.

I think there was an intensity around where are we on implementation for the executive orders? This is the list of the president’s requirements for— if they were going to make a deal, I guess, in their terms. And then my role in that was like this is what CBP is planning to do in priority. >>The travel-related EO has already gotten tied up in the courts around this time, and so is there also a kind of a feeling that there’s been a rebuke or that things are slowing down? >>I think there was a recognition that, you know, this would eventually break our way, if you will, or the administration’s way, and then all of the other things that were being considered—you know, changes to the Flores settlement, the regulations that were required to be written, its implementation, and then sorting through what options that were available.

And in the early days, I don’t think there was a lot of understanding about what was available, right? There were— I was in several meetings where the chief at the time, Kelly then, was urging us all to think of ways, you know, to give the president— to give ourselves tools to help this problem. >>They were pretty open to your ideas. >>Yeah, there was a lot—there was like, what’s out there? What can we do? Use your imagination. Talk to the folks that understand the legal framework to get them to give you their best thinking on if we move in one direction or the other. >>And “zero tolerance” was something that I imagine you viewed as very important. >>It aligned with my experience, right? In the times where we applied a consequence to people who crossed the border illegally, we got less of them crossing the border illegally.

And so when zero tolerance was discussed as a way forward, we knew that it was going to be a benefit to us. >>There’s some mention that Kelly is pretty involved in the discussions about zero tolerance early, much, much earlier. Were there sort of regular discussions about the planning involved in maybe rolling something like this out? >>Yeah. I remember in one of the meetings, we were very clear— the attorney general was very clear that he was going to prioritize immigration enforcement. They were going to do more prosecutions at the border. And then at some point, more from “We’re going to focus on this problem” to “We’re going to give you as much capability as we have,” and that’s when the zero tolerance thing kind of was put out on the table. And then it was kind of over to us, right? That was him asking DHS: “OK, you have to implement this. These are your people at the border.

Tell us what that looks like.” So a couple of discussions around that. >>… And help me understand how this— how zero tolerance leads to family separation. >>In implementation, you know, we task back to essentially the Border Patrol and field operations at CBP, like, hey, what does this look like? If the attorney general is going to open the aperture on thresholds and all the things that happen and the tactical sense at the line, what would happen if we started to increase prosecutions at the border? And so I’m doing this by memory, but there was an implementation memo that was written by the chief at the time that talked about the discrete categories of what we were facing in the numbers, what they’re seeing in each location and what that would look like in the broader sense. >>This is a memo Kelly puts out? >>No, it’s direction internally from CBP.

This is what it’s going to look like. It’s kind of informing the chain of command up and then looking at what would be required at the tactical level. >>And is this all happening before the plan is announced? >>I’m doing this by memory, but I think the attorney general uses or talks about zero tolerance as an option or as a capability to the department, and then that’s like April, and then couple of weeks, a month or so later, implementation at CBP starts. >>Right, I think it’s May 7.

Earlier, there was a trial happening in El Paso. Do you—were you involved in that? >>Not particularly in the trial, but recognizing that El Paso in the November to, I don’t know, it’s like late winter into the next year, they were doing—they had, based on an agreement they had with the local U.S. Attorney’s Office, they were doing their own version of a zero tolerance policy. >>Was it a test case for something larger? >>No, it was a local initiative, right? The leadership in CBP in the field and the U.S. Attorney’s Office were having discussions based on the priorities being outlined in the executive order and the information coming downstream from their chain of command, the Attorney General’s Office. And they decided to use that capability, and it was essentially their own zero tolerance initiative. >>… Some of the White House advisers maybe we’ve talked about, were they sort of plugged in? >>Looking backward at it, we recognize the data, you know, because we would classify all these arrests.

We would look at recidivism; we’d look at the information. And it was clear to everybody when we looked backwards at it that it was working, that the traffic in these particular categories of demographic was lower in El Paso than it was in almost every other place. And so once we noticed it was going on, they suspended that initiative as we were talking about the larger zero tolerance implementation. >>Once the announcement is made that it’s going to be a much larger program, that it’s going to be launched— this is now in May—can you help me understand sort of any meetings that are happening right around the announcement, anything that’s happening just right before this is rolled out, any interactions with the attorney general? >>Nothing specific. I mean, my work at that time was understanding the whole range of things that were happening at CBP. I was the acting deputy commissioner then, and then just understanding how we were going to implement and whether we were ready or not, what the resources were required, where we were going to go in priority order.

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>>… Secretary [Kirstjen] Nielsen is really associated with this program. Is that fair? Is that in many ways how—she’s obviously very integral to the process, but could you place her into this— into this narrative? >>I think she was trying to respond to the implementations that were underway. It was her responsibility to run the department, and, you know, she was checking up to make sure that we were implementing and we were all in alignment as it related to the resources both coming from Justice and then our own implementation at CBP at the department. >>… And kind of going back to the response after the travel EO, the response to this, it’s pretty— the public response to this, the news coverage at the time, it’s very critical.

As you’re sort of watching this, as Nielsen is watching this, how is it being processed within the agencies, within your offices? >>Well, I began to realize, and I think collectively we began to realize, that we didn’t predicate this as well as we should have. We were trying to respond to the surge in activity. We know that consequences make a difference; zero tolerance is a consequence. And I don’t—we did not initially inform the public what this was going to look like in a methodical way, which I think was a lesson for all of us. The acting secretary now says it best: Like, this thing was important, but when you lose the trust of the public, you can’t continue to do it. And the president recognized that, issued the executive order urging Congress to act.

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And then within a couple of days or the next day, the judge ordered to stop and reunite the families that had been affected. Then it really became chaotic. >>Before the EO’s signed, why do you think— why do you think there was not plans to anticipate this public response? Was there just a feeling of, you know, “We’ve got to get this out there”? Was the focus just on implementation and not handling sort of the PR related to this? >>Yeah, I think we were focused on getting it done and less about talking about it or predicating it. Obviously, again, that’s a lesson we learned.

>>Who do you think understood that? Who do you think learned that lesson? >>All of us did. >>And when the EO is signed, what’s the feeling? I mean, this is a huge reversal from, you know, a pretty dramatic policy, a policy a lot of folks wanted that several—that really all of these agencies— is there a feeling of—these new tools and these new abilities have just, they’ve ended as soon as they began? >>Yeah, I think we’re all a little bit taken aback. We knew it was bad and it was going to get worse. And it got much worse after the judge’s order. And, you know, it just— we didn’t anticipate having to do what we did. And, you know, we’re then set about implementing the order, which was quite difficult. >>How did it deteriorate after the order? >>Well, previous to the order, previous to the judge’s ruling, if a couple came with their child, the adult male would be set for a hearing and the family members would be released, the mother and the child.

After the judge’s order and the executive order, we couldn’t do that anymore. And so now, entire families are coming to the border, which you can see the dramatic rise in the numbers of people coming with their children and children still coming alone. And it begins then, and it hasn’t ended yet. It’s much worse now. >>And in terms of custody, what happens to the adult? What happens to the kids when they come over together? >>Now? >>Then, yeah. After the EO is signed, ending it. >>Yeah, so they’re processed for release. Sometimes a brief stint in family detention, but really just long enough to get them healthy and get all the paperwork done for their release. Because of the Flores settlement, they can’t be in custody for more than 20 days after a judge’s ruling. >>And where do they go? >>Wherever they want. You know, ICE has a specific protocol, and they help people get settled, either out of the family residential center or at the border.

The nongovernmental organizations, Catholic Charities, etc., they’re helping us move these families away from the border, because almost all of them are not staying. They’re going to the interior. >>And the fallout from some of this legal— the legal challenges and—what is—? I’m trying to think of how to phrase this, but are there discussions about what to do at the White House level after the EO has been signed by the president, or what’s the conversation like with the White House after the EO is signed? >>There wasn’t a lot of time between when that executive order was signed and the judge’s ruling.

And so as soon as the judge ordered it to stop and the families to be reunified, we then had to sort of rebuild the system. That’s why, in my opinion, this looked so chaotic to the public, because at any given time, if you go to CBP and say, “How many encounters did you have? What happened to the people that you encountered? Where are they now?,” they can tell you exactly how many encounters they had, where the people went, what their dispositions were, how old they were, how many times they were fed, how many times they ate, how long they’ve been in custody.

There’s a perfect system—not perfect; it’s run by humans— but there’s a system that tells you exactly what’s happening activity-wise in CBP custody. At some point, that custody is handed off to ICE either for release or for ongoing detention for proceedings. And at any given time, ICE can tell you how many facilities they operate, how many people are in those facilities, how many people have had a hearing, how many people are still pending their hearing and how many people have been released. They can tell you in specific ways what happens to all the people that are in custody. HHS [Department of Health and Human Services], who is the caregiver that runs the apparatus that funds the shelters for the kids who come by themselves, and some of those separated kids went into HHS care, and they can tell you exactly how many kids they have, where those kids are, when they’re ready for release, when they’ve been released and who they were released to.

The judge’s order enforced the—the implementation of the judge’s order forced us to make the system work backwards, and it wasn’t designed to do that. And so we had to take the records at HHS matched with the records at ICE and matched with the records at CBP and had to work the system backwards until we could account for each of the folks that had been separated under the zero tolerance policy. That was very difficult to do because it’s not the way the government works. They’re three distinct entities that work very closely together on the handoff, but the system is designed to work linear that way, and we had to make it work backwards. That was really difficult to do. >>And you had to do that to reunify? >>Right. >>… Reports after the El Paso trial and reports after zero tolerance and family separation and IG [Inspector General] reports have said, look, there were a lot of kids who didn’t—were not reunified, or there were a lot of parents who weren’t sure how to connect with their children during that time period.

What do you make of that sort of story, that in fact kids were, you know—it was not going to be so simple to place these families back together? >>Yeah, so we made some assumptions and calculations that the children that ended up in HHS care would eventually be reunited with their parents. And then once the all-stop order was given by the judge, then that changed sort of how we thought about the calculation. And having to figure out where the parents were in ICE custody and then what that meant to HHS and trying to connect those dots was a challenge. >>Just connecting kids back to their parents was? >>With a deadline. >>And who do you think didn’t understand that ahead of time? >>Well, nobody understood it.

We didn’t expect it would end and have to be reversed. So that assumption wasn’t part of our plan. This is the troop surge that Trump sends. This is also around the time of the caravans. Can you sort of talk about this time period? >>Yeah. >>What are you seeing? What’s the crisis? >>Well, the phenomenon of large groups of people traveling together, with or without the assistance of criminal networks, deciding that they were going to travel to the United States and essentially, you know, daring the governments in between here and there to stop them. And so lots of focus on who’s responsible for this, what assistance can we get in country, in Guatemala, El Salvador, Mexico, and then how do we respond to a large group approaching the border and demanding entry like they did in Guatemala and like they did in Mexico? And so there were a number of support requests from CBP to the Department of Defense to add capability on the border.

Soldiers were sent. They did a lot of barbed wire installation, concertina wire, those kinds of planning efforts to add capability at certain places on the border. The first caravan, turns out, goes to San Diego and makes a dramatic attempt to just kind of flood across the border, but because of the assistance that we had, because of the preparations, we were able to stop it. >>And, you know, the administration is criticized for ginning up some of this crisis in the sense of it becomes a talking point in this town: the caravan, the caravan, the caravan. Does that seem—does that seem to match what you’re seeing? I mean, again, you know, the administration’s sort of criticized for creating that crisis, that perhaps that wasn’t—that wasn’t real? >>No, it was very real.

The agents on the ground that were getting rocked and getting yelled at, and the riot, almost, that was occurring right at the line, that was very real. I don’t understand how this is created by anybody but the people who actually did it, right? Somebody organized that caravan, and they don’t work at the White House. Somebody funded their travel through the country, even if— and fed them and gave them assistance as they were making their way to the border. That was very real. >>… Let me ask you about the shutdown just for a moment. I mean, the president’s obviously criticized for shutting down the government over border-wall funding.

But I’m curious to know what your view is of how important that was as a tactic to use to force Congress to— >>Yeah, I’m not sure. We helped the secretary prepare for those meetings. You know, I’ve been in several shutdowns as a federal employee. This one was a lot longer than any of them. It was—you know, it’s a tactic that they use. They play this game of chicken, and it doesn’t— it’s difficult on the workforce, and most of our time was spent understanding their need and trying to communicate with them about, you know, how they could access resources, how they could prepare if this was going to be longer than it was. >>You know, ultimately it doesn’t go anywhere.

Does that surprise you? >>A lot of things surprised me. I actually was in a couple of these meetings. I was impressed by the vice president’s ability to kind of orient the leadership to focus on something that they could do together. He did that both at the leadership level, House and Senate, in the president’s meeting, and then he did it with the staff. So you know, he did some weekend work. I was in one of those sessions where he was trying to get all the ideas on the table and try to sort out the ones that both sides had agreed on so that they could help get through the shutdown and get back to business. That was—that was interesting to see how methodical and how he was trying to sort what was very complex.

And I also was very surprised that in a couple of the initial meetings that people were saying that walls don’t work. I mean, there was this whole discussion about what the wall was going to look like, where it was going to be. Having been involved in the action planning and sort of hearing what people were describing versus what I knew what the reality was was very surprising. And then there was a lot of talk from the opposition, like the House leadership, about how they’re very much for border security.

But then when it came right down to it, they didn’t want to fund any of the things that the president had asked us to plan for. And that was disappointing and surprising. I thought they were going to come out of this thing with a deal. I thought the president was genuine when he addressed the group and said: “Hey, we can do a bigger deal. Let’s get through this, and then we’ll sit down and talk about all of the things we both want.” But it didn’t end up getting—amounting to much. >>… Can you help me understand the frustrations of the president at this time? He’s alone in the White House over Christmas break. I mean, this is a— >>Well, I think in the first meeting, he was like: “Hey, let’s see where we’re at.

Let’s see what we can do to get this done.” I think he was genuine about talking about a bigger deal. But it was clear he was focused on funding for what he thought the priority was. And in my mind, when he was talking about the wall, he was talking about all the resources CBP had asked for on the line. And then there was a lot of discussion about the trade-off between, you know, the trade mission and the border security mission. But it wasn’t very tense until the secretary started to brief, and then it kind of got off the rails. We sort of recovered from that, and in the second meeting he was clearly much more frustrated about the impasse they were in, and sort of—I don’t know. It felt like confusion to me about why they wouldn’t just give him what he said he needed. The second meeting then turned into the weekend work that the president did—or the vice president did.

But again, it didn’t’it didn’t produce something that they could both agree on. >>You seem to blame forces in the House Dems for that deal not happening. >>Well, I heard what they said. They said they talked about border security, and as a guy who helped plan the border security regime, then them not applying any resources to it, not applying legislative changes to abate the flow and the crisis at the border that causes a caravan to exist, it was frustrating. And you know, obviously I’m more in line with the idea of you need to secure the border, you need to make these changes. Otherwise, you’re not going to secure the border. So yeah, I saw them as the opposition— or the folks who were keeping it from happening.

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>>Secretary Kelly’s pretty frustrated, and you said it goes—you said the meeting goes off the rails? >>Kelly? No, I don’t believe he— >>I’m sorry. This is Nielsen, yeah. >>Yeah. Well, she started to brief. In the first meeting she was in, she was at the border, so she was piped in over video. And she started outlining the statistics about what we were seeing, and one of the data points that she was talking about was the number of people who are arrested that have a previous criminal record in the United States. And the speaker kind of took offense at— I think there was some miscommunication. I think the speaker believed she was telling the room that everybody that was crossing the border was a criminal, and that kind of sidetracked everybody for a while.

>>Let me ask you a little bit about that. You know, there’s some thought that there’s a schism between Secretary Nielsen’s feelings about some of these issues and the president’s. Did you get a sense that she was carrying out a vision in many ways that she didn’t fully believe in? Or is this particular policy, policy of zero tolerance and family separation, something that ideologically she was aligned with? What’s your take on that? >>No, I think she was trying to do the best she could with the circumstance we were in. I think the frustration that everyone had was is that we just don’t have the tools to fix this problem. And I think the White House was frustrated that we couldn’t solve this problem. And I’m not sure how it’s articulated up the chain. You just don’t have the tools for this. You need Congress to help you. I think that’s well known now. I’m not sure at the time it was as clear. And so she was charged with implementation, but again, she doesn’t have the tools to finish or to solve.

>>Let me ask you about the 10-cities plan. How does that originate? Where does that idea come from? >>In the discussions, the iterations of what can be done, how do we—you know, what worked before, what’s available to us. The capacity at the immigration court is always talked about as it related to the family demographics.

We hit on an idea that what if we expedited the docket for this particular demographic, would it matter? Everybody thought that well, if the consequence is removal, then we could get less of whatever the flow is. And so they stood up this “rocket docket” in the 10 locations and started hearing family cases I think in September. And so we saw that as a benefit. That’s, again, Justice coming forward with a tool for us. >>Who’s asking for the tool? >>We were all, all of us—the departments, both the leadership at CBP, ICE and DOJ. >>And the White House is also coming to you with this request? >>I don’t think the White House outlined the specific “Let’s do this in 10 locations.” They said, “Hey, are there other things we can do?,” and then collectively we came upon this idea.

>>And do you remember who at the White House is asking? >>I think everybody at the White House was asking. I mean, in the meetings that I attended on behalf of the secretary or with her, there was always a session in which we talked about, OK, we’re doing all these things; we’re at this step in implementation; what else can be done? And that came out of one of those meetings. >>There’s some feeling that you have that we’ve really got to make sure we know what we’re doing before implementing. We’ve got to make sure we know how this is going to be covered before we implement something like this. You were concerned about headlines; you were concerned about the response publicly, if this— >>So in the 10-cities project, the rocket docket in— sometime in March, Justice has identified the number of cases that have been heard, and they’re highlighting to all of us the number of orders in absentia, which means people were noticed for their hearing and they refused to follow through on their due process opportunity. And so there was a growing number of people who were on that docket who had been already removed.

And there were requests for information and inquiry from the Justice Department that said, “Hey, when is ICE”— and I was at the time acting director— “when are you guys going to take this on?” And so we started planning. It was a bit of new learning for me. I’d never been a deportation officer. I know the process, I know the continuum, but I didn’t know practically how our officers were going to go out and find these folks.

And so they quickly, you know, after a briefing or two, I clearly understood what was going to happen and the ramifications of it. I knew the practical effect of what this operation would look like, and I recognized after the lesson learned from zero tolerance, after the lesson learned from other things that we had tried in my career, that we had to do some deliberate planning. We had to refine what we understood about the population, and we had to get the leadership on board to understand that once we proceeded with this operation that they could articulate what we were going to try to do and recommendation that we take the step to inform the public as it’s happening, or before it happened, so that they understand what it looks like, because I don’t think the press was going to treat it fairly, so we wanted to prepare for that.

>>What was at stake if it wasn’t covered well? >>We wanted the information to be out there. We wanted the predicate for “Hey, these folks came to the country illegally. They crossed the border; they claimed asylum. They were released based on the way the law’s operationalized. They were given an opportunity for relief and due process; they didn’t take it. A judge reviewed the case work as it was available and ordered them deported.” And so this was a way for us to close the loop. So Flores is a loophole. Enforcing a removal order closes that loophole, and so we wanted—I wanted people to know that up the chain so they could defend our officers as they proceeded with this operation. And I wanted the wider public to know that this is how immigration enforcement works. >>There are some reports that there was disagreement about wanting to carry this out, that Secretary Nielsen didn’t want to carry this out, that maybe you were opposed to this as well. Is that accurate? >>No, I was never opposed to doing it.

This is something that we—the Justice Department did something we asked them to do, something they had never done before, and we always knew that it was ICE’s responsibility to close the loop. And so there was never any disagreement that it was going to be done and it was necessary to do. But I just wanted the chain of command to understand fully what it was going to look like in application. And so that took longer than probably a lot of people wanted it to. >>I think Secretary Nielsen is in London during this time period at one point and is— the president is upset that she’s not at the border. He calls her, brings her back to Washington. Do you sort of remember this, how this sort of played out? >>We had briefed her a couple of times. In the first briefing, we talked about what implementation looks like. She asked a number of questions. There’s a discussion with her team about what this would look like in light of the executive order that the president signed about separations. And so we gave some of that data to her offline and had a subsequent meeting.

And then she was out of town, and then she came back. I understand that she was in London. I saw the reports about why she came back, but I don’t know specifically whether that was a request of the president or what that looked like. >>Do you know ultimately why he fires her? Is it over—it is over this? >>No idea. >>Is it just general frustration about—? >>Yeah, there’s a lot of unsatisfaction in the way this is all playing out, right? I mean, the last several weeks that I was in ICE, we have a surge at the border; we have no relief coming from Congress; we have insufficient resources to deal with our own internal needs for operational capacity; I have CBP calling every day saying: “Hey, we’ve got this many thousands of people in custody.

When are you guys going to come get them?” So there was a lot of dissatisfaction, and then you recognize that the misery that’s being handed out at the border, there are thousands of people in CBP’s custody, and they’re all going to get released if they’re with a family. And so yeah, there’s a lot of dissatisfaction. Everybody was frustrated. >>And the idea about doing these—these roundups, it’s not happening. I mean, it’s delayed, I should say. Frustration about that? >>Not with me.

I mean, I just wanted to have a methodical, public message and, you know, wanted to move smartly through what it meant, and there wasn’t enough time on the clock for me. >>When your nomination is pulled, do you get the sense of is it happening because you’re not moving fast enough on this? >>I have no idea. I have no idea. There’s lots of speculation; there’s lots of press out there. I don’t know what the president knows or what he was told about my activity. I was doing two things on his behalf. I was trying to run the organization and meet the priorities that he had for border security and immigration enforcement, and trying to secure a nomination both at the same time.

I don’t think those are exclusive missions. That’s what I was trying to do. >>I mean, you’re really aligned with this White House, with this president, with these advisers on these issues. Is it surprising to you that they’re going in a tougher direction than you? I mean, I think that’s what the line was from the White House. >>Yeah, I was surprised. >>Do you know—I mean, certainly there are reports at this time period is called a purge at DHS.

Do you know who’s behind that or, again, whether maybe Stephen Miller is overseeing some of these replacements and firings? >>I have no idea. Like I said, it was a surprise. Your comment about, you know, “Are you aligned with this president?” We did everything he asked us to do. He’s done quite a bit to focus the entire department, the entire government on this problem, and the intensity by which he sort of energized the system is something I’ve never seen in my career. So we were totally appreciative of his efforts to improve this problem. >>I mean, looking back at the last two and a half years and this issue and this administration, has he achieved what, you know, you think could have been achieved during this time period? Has this been successful? >>I think he’s made improvements as it relates to the physical security at the border.

The ultimate desire to have a system that has integrity has not been met because the law doesn’t allow for it now. And the smugglers and the folks that are coming from the Northern Triangle, they figured it out, and there’s no relief coming. I mean, it’s a terrible situation that we’re in. It’s less about the investment you make at the border now than it is about the changes to the law.

>>Crazy to you that the administration that has been sort of the hardest on enforcement and perhaps the most aggressive in prioritizing this issue is also the one that’s overseeing just the greatest increase in migrant traffic? >>Yeah, it’s—but they don’t have the tools to fix it. Congress has to act. We got the supplemental request out for $4 billion. Most of that money is going for child care at HHS and capacity for CBP holding through processing. You know, people get booked in, OK, you could spend a billion dollars on that, but I’m not sure that that’s going to be enough.

If they don’t close the loophole, why would people stop coming? >>Do you think there are some things that could have been done differently? >>Yeah, they could change the law. I mean, there could be an actual legislative fix to this. >>There’s going to be four secretaries of DHS shortly in the last two and a half years. Does that number sort of strike you as pretty different than previous administrations? >>I suppose it does. I didn’t have the same seat for all of the previous administrations.

But yeah, I mean, it’s—it’s the nature of things. >>Does it reflect sort of the president’s
frustrations or—? >>I suppose it does. You know, like I said, I don’t know what he knows. But, you know, there’s a—this is a big problem, and it’s been a problem for a really long time. This is a guy who’s trying to do something about it. This agreement that he made with Mexico recently— I mean, no one’s really done more. But the ultimate solution lies in tools he doesn’t have. >>Barriers in this town? >>Yeah. So Congress has to act. They need to change the law. They need to fund this problem for the emergency that exists now, and they really have to close these loopholes. Otherwise, this continues. The misery that it exacts on the people who are involved is going to continue.

I got a few things I just want to go back on…. You are a guy who has been on the line and dealt in day-to-day issues your entire career. How do you view the idea that this issue, as such an extremely important issue, is so enveloped in politics and that politics prevents things from happening? It also makes things happen in certain ways that perhaps is not the positive way to go.

Just your overview of this interaction between Washington politics and this issue: What’s important to understand about that? >>It’s important to understand that, you know, the people who do the work are the ones that are in the middle of this crisis now, right? The agents, the doctors, the nurses, the people that are out there, they need the resources to solve the problem as it is currently. The front line is where this work gets done. I’ve been part of that from the beginning of my career, and I think it gets lost on folks how difficult that job can be at times, how dangerous it is, and more importantly, the compassion that they have to show in this current circumstance. I don’t think people realize how difficult it is.

You know, imagine coming to work every day, and you have 1,000 people that are waiting for you to book them into the procedure, and then you spend eight hours doing nothing but interviewing people who are then eventually going to get released. You come back the next day, and there are 2,000 people waiting in that same line. It’s a difficult situation for our folks to be in.

The facilities that they have are not built for this problem, and it’s unfortunate that it’s not fixed..

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