Child separation back in focus after federal personnel changes

Last month, late on Friday the 13th, as coronavirus chaos erupted across the United States, a rumor started circulating in the Office of Refugee Resettlement (ORR) at the Department of Health and Human Services (HHS): a leadership change was coming—and soon.

With almost no notice, the White House reassigned ORR Director Jonathan Hayes, a man several people told me was the best leader the office ever had. His staff was in shock—and even some tears.

Hayes’ superiors also weren’t happy, including HHS Secretary Alex Azar and Lynn Johnson, the assistant secretary for the Administration of Children and Families. In an internal email announcing the move, Johnson said Hayes “made an enormous impact for good over the last two years.”

HHS insiders were not the only ones who thought so. A dozen interviews and a review of documents and congressional testimony reveal Hayes earned praise from across the ideological spectrum, while turning around an office at the center of one of the biggest controversies of the Trump presidency: the migrant child separation policy of 2018.

“Changes aren’t unusual in this administration, but our sense was that Jonathan Hayes was doing a pretty darn good job navigating what are tricky waters,” said Wendy Young, president of Kids in Need of Defense (KIND), a nonprofit group advocating for unaccompanied minors. “In the context of family separation, I think Hayes was doing what he could to provide care to the children in his custody.”

That turned out to be exactly the problem. Anti-immigration hard-liners—led by presidential adviser Stephen Miller—saw Hayes as soft on immigration and ousted him while the nation’s attention was focused on the exploding pandemic. Now, they’ve imported new leaders in an effort to refashion ORR into an arm of immigration enforcement—sparking concerns that the child-separation policy Melania and Ivanka Trump intervened to stop may return in another form.

“I don’t think they’ll be happy to know Miller is again prioritizing his objectives over the best interest of children,” said an HHS official whom WORLD granted anonymity because speaking on the record would put the person’s job in jeopardy. “You now have law enforcement-minded immigration hard-liners running a child welfare program.”

The ORR moves come as most immigration has at least temporarily shut down, but they have the potential to reverberate long after the coronavirus crisis has passed.

CONGRESS CREATED the office of refugee resettlement in 1980 to streamline U.S. refugee policy. In 2003, the Homeland Security Act transferred the responsibilities of caring for and placing unaccompanied minors from the Department of Justice to ORR at HHS. The Bush administration’s rationale for doing so: Unaccompanied minors in government custody is a child welfare issue, not a law enforcement issue.

But Stephen Miller sees immigrant children as leverage to deter unlawful migration. In 2018, at Miller’s behest, the Trump administration began prosecuting all suspected illegal border crossers—a “zero tolerance” policy that involved the separation of thousands of children from their parents. The controversy came to a head when ProPublica released audio from a detention facility featuring wailing children and a Border Patrol agent joking, “We have an orchestra here.” Two days later President Trump signed an executive order to end the practice.

Now almost two years later, the policy is still the subject of pending litigation. Ivanka Trump, the president’s adviser and daughter, has called the separations a “low point” for the administration.

The responsibility for cleaning up the mess fell to ORR—first caring for separated children and then reuniting them. The office struggled to do so under ORR Director Scott Lloyd, prompting Azar to remove him.

Complicating matters was another White House-driven policy Lloyd enacted before his departure. It required fingerprinting of all adult members in a child sponsor’s home (the vast majority of unaccompanied minors have a family member residing in the United States), which tripled the length of stay in ORR care from, on average, around 30 days to more than 90 days. Consequently, the number of children in the ORR system ballooned to nearly 15,000—a record high.

That’s when Jonathan Hayes entered the scene, first as acting director, then permanent director in early 2019. Hayes did not have prior experience in refugee or child welfare work, but he did have relevant management experience as chief of staff for two conservative members of Congress (Reps. Steve Southerland, R-Fla., and Trent Franks, R-Ariz.).

Under Hayes, ORR released a series of four directives that reshaped the way the office handled child placement. Most notably—while continuing to vet and run sponsors through background checks—Hayes suspended the practice of fingerprinting all adults in sponsor homes, citing the backlog and that none of nearly 50,000 fingerprints changed an ORR discharge decision.

“That allowed us to discharge some 8,000 children in 30 days,” Hayes told a House oversight panel last September. As of last week, HHS reported roughly 2,100 children in ORR care—the lowest number since before the 2014 surge.

Hayes declined an interview request, but people who worked with him said his Christian faith motivated his work (he’s an elder in the Presbyterian Church in America). A review of his congressional testimony painted a picture of someone who supports a secure border—when asked if there is a crisis at the southern border, he responded “absolutely”—but also wants to efficiently release children to families while they await court dates.

“I want to see the children back with their families,” Hayes told a House Appropriations subcommittee last July.

At that same, often-contentious hearing, Democrats pressed Hayes on transferring children out of Homestead, a particularly controversial emergency influx shelter for migrant children in South Florida. In mid-June, Homestead housed nearly 2,500 migrant children, according to the South Florida Sun Sentinel. At the July hearing, Hayes reported they had only 894 children left at the facility.

“You’re moving pretty quickly,” acknowledged Rep. Rosa DeLauro, D-Conn., who chairs the subcommittee.

“Yes, we are, ma’am,” Hayes responded.

At the same hearing, the top Republican on the panel also recognized the work ORR was doing.

“HHS has had some successes it doesn’t get a lot of credit for,” said Rep. Tom Cole, R-Okla. “The average stay there now [at Homestead] is about 42, 44 days. We’d like it to be quicker, but that compares to about 90 under the Obama administration.

Cole and two other Republicans active on refugee issues—Texas Rep. Michael Burgess and Oklahoma Sen. James Lankford—declined to comment for this story.

WHITE HOUSE interactions with ORR began to sour late last year after HHS brass resisted efforts to embed an Immigration and Customs Enforcement (ICE) official at ORR. The Washington Post reported that senior HHS officials made the decision. But it was Hayes who ultimately took the blame for it.

After Hayes’ reassignment, two attempts to install ICE officials atop ORR failed to materialize, so the White House installed Heidi Stirrup as acting director. Stirrup, a deputy assistant secretary for policy, is a former Capitol Hill staffer without experience working with refugees or managing a nearly $2 billion budget. But she’s close to Miller and his top lieutenant, John Zadrozny, a former Federation for American Immigration Reform staffer who now works at the White House.

Through an HHS spokesperson, Stirrup declined an interview but offered this statement: “As political appointees, we are honored to serve at the pleasure of the president, and when we are asked to serve, we step up and we serve.”

In late March, Stirrup reassigned ORR’s other political appointee, Amanda Anger, and elevated Kim Womack, a former Trump campaign staffer with no known relevant experience, to chief of staff. She also hired as senior adviser Bennett Miller, an attorney who brings a law enforcement background from a stint at the Department of Homeland Security, but no child welfare experience.

Immigration hard-liners have populated the Trump administration from the beginning, but this represents the first time Miller and Zadrozny have opened a direct line of communication into HHS. They have pushed to restart fingerprinting of all adults in sponsor homes and prohibit the placement of children with illegal immigrants.

These changes would result in longer custody times and increasing numbers of minors in ORR care—what some call “reverse child separation.”

“We have seen the consequences of limiting the number of sponsors and reducing their willingness to come forward: Kids endure irreparable harm as safe placements grind to a halt,” DeLauro said in a statement following a POLITICO report on the ORR changes. “That is government-sanctioned child abuse.”

HHS said it has no new ORR policies to announce at this time. But even if it adopts new official policy soon, the impact might be minimal in the short term. Amid dozens of unilateral immigration actions since the coronavirus outbreak began, the Trump administration has effectively sealed the border. That includes turning away unaccompanied minors.

“You’re now seeing the administration getting very close to achieving its goal of treating unaccompanied children exactly the same as adults crossing the border,” said KIND’s Wendy Young.

Typically the Flores settlement and a 2008 anti-trafficking bill known as the TVPRA guarantee certain rights to children arriving at the border. But immigration authorities have interpreted the president’s emergency declaration as permission to suspend compliance with those laws. Advocacy groups are considering litigation.

Even if the suspension stands as long as the emergency declaration, it is theoretically temporary. But immigrant advocacy groups are skeptical.

“Stephen Miller has put into place the people with the knowledge to take advantage of a crisis like COVID-19 to truly end immigration and asylum as we know it,” said Ali Noorani, president of the National Immigration Forum. “We have no confidence that once the nation moves from coronavirus response to recovery that protections for asylum seekers, unaccompanied minors, or others seeking protections will return.”