International Law And Kirstjen Nielsen: A Breach?

Kirstjen Nielsen, the former United States Secretary of Homeland Security, has been accused of breaking international law during her time in office. Nielsen played a critical role in the Trump administration's family separation policy, which saw thousands of children separated from their parents. She has also been accused of unlawfully restricting asylum and protections for immigrants, championing the Muslim ban, and expanding warrantless searches at the border. While some of her policies were blocked by the courts, Nielsen's tenure as head of Homeland Security was marked by a clear disregard for civil rights and people's lives, resulting in a humanitarian catastrophe.

Kirstjen Nielsen's implementation of the family separation policy

Kirstjen Nielsen, the former United States Secretary of Homeland Security, is best known for implementing the Trump administration's family separation policy.

On May 7, 2018, Nielsen officially enacted the controversial practice of separating parents and children accused of crossing the US-Mexico border illegally. At a congressional hearing a week later, she testified that she would enforce the Trump administration's policy, noting that similar separations happened in criminal courts "every day".

In June 2018, Nielsen stated that the Trump administration did not maintain a policy of separating migrant families at the southern border. However, this claim was deemed false by The Washington Post fact-checker, who pointed out that the DHS website showed a policy of family separation was in place. By this point, the Trump administration had, in six weeks, separated approximately 2,000 migrant children from their parents.

Nielsen defended the policy at a sheriffs' conference, arguing that the administration had asked Congress to "allow us to keep families together while they are detained" as an alternative. She claimed that the only other option was to "release both the parents and the children", which she characterised as the "historic 'get out of jail free' practice of the previous administration".

Amid growing public outcry, Nielsen held a press briefing with White House spokesperson Sarah Huckabee Sanders, where she accused the media and members of Congress of mischaracterising the administration's policy. She denied that the administration was using family separations as political leverage to force Congress to support Trump's broader immigration agenda or to deter migrants from coming to the United States. However, these comments contradicted those made by Attorney General Jeff Sessions, Chief of Staff John Kelly, and senior adviser Stephen Miller.

On June 20, 2018, Nielsen was present as Trump signed an executive order ending his "zero-tolerance" policy of separating children from families. Sources told Politico that Nielsen had privately pushed for this executive order while saying publicly that it could not be created.

In September 2018, The Intercept reported that Nielsen had personally authorised the family separation policy after receiving a memo by the heads of three federal immigration agencies recommending the policy for the express purpose of deterring migration. This contradicted her earlier claims, in which she had avoided attributing deterrence as the purpose of the policy.

Nielsen testified before Congress that "every parent" had the choice to take their child back and that parents who left their children behind did so voluntarily. However, a 2021 investigation by the Department of Homeland Security Inspector General contradicted her claims, finding that parents were forcibly deported without their children.

In October 2019, Nielsen defended the policy, saying, "I don't regret enforcing the law".

The legality of Nielsen's Migrant Protection Protocols

Nielsen, then-Secretary of Homeland Security, announced the MPP on December 20, 2018, as a measure to confront the illegal immigration crisis facing the United States. The MPP, also known as "Remain in Mexico," forced non-citizens seeking admission from Mexico to return and await their removal proceedings. This policy was implemented despite widespread reports of human rights violations and logistical problems.

The legality of the MPP was challenged on several grounds. Firstly, the lawsuit argued that the policy undermined the United States' domestic and international legal obligations to ensure non-refoulement, which is the principle of not forcing refugees or asylum seekers to return to a country where they may face danger. Secondly, the complaint detailed deficient and abusive practices by Customs and Border Protection (CBP) officers in implementing the MPP, including cursory interviews, coercion, and verbal abuse. Thirdly, the MPP interfered with the work of legal organizations assisting asylum seekers, straining their resources. Finally, the lawsuit alleged that the MPP's failure to comply with the notice and comment requirements of the Administrative Procedures Act was a violation of the law.

In response to these challenges, the federal district court issued a preliminary injunction blocking the MPP in April 2019. However, the Ninth Circuit granted a stay of the injunction, allowing the MPP to remain in effect. The legal battle continued, with the Ninth Circuit ultimately denying the government's appeal in February 2020 and finding that the MPP violated federal law. Despite these legal challenges, the MPP remained in effect and was only formally terminated in June 2021, following a phased wind-down of the program.

While Nielsen defended her actions as upholding the rule of law and confronting the immigration crisis, others argued that the MPP failed to provide due process to migrants and violated humanitarian and international legal obligations. The controversy surrounding the MPP and its impact on asylum seekers highlights the complex and contentious nature of immigration policy in the United States.

Nielsen's role in the Muslim ban

As Secretary of Homeland Security, Nielsen was in charge of implementing Trump's Muslim Ban. She was also responsible for the expansion of warrantless searches of electronic devices, such as cellphones and laptops, by CBP agents along the border. This included the expansion of social media "vetting", despite concerns about unfairly targeting Muslim immigrants and immigrants from Muslim-majority countries.

In March 2018, a class-action lawsuit was filed against the Trump administration on behalf of 34 US citizens, lawful permanent residents, and foreign nationals from Iran, Libya, Somalia, Syria, and Yemen. The plaintiffs had their visa applications wrongfully denied or stalled by the federal government’s failure to provide fair and meaningful access to case-by-case waivers from the travel ban. The lawsuit was the first challenge to the government’s ongoing implementation of the Muslim Ban since the Supreme Court’s June 26, 2018 decision that affirmed the legality of the policy.

In December 2018, Nielsen announced a new government policy, the so-called "Migrant Protection Protocols" (MPP), which would force noncitizens seeking admission from Mexico to return to Mexico to await their removal proceedings. A lawsuit challenging this forced return policy (commonly known as "Remain in Mexico") was brought on behalf of legal organizations that serve asylum seekers and 11 asylum seekers from Central America. The lawsuit alleged that procedural deficiencies in the MPP policy undermined the United States’ domestic and international legal obligations to ensure non-refoulement of individuals who have expressed a fear of return to Mexico.

Nielsen resigned as Secretary of Homeland Security in April 2019, two days after Trump announced he wanted to go in a "tougher" direction on immigration.

Nielsen's expansion of warrantless searches at the border

As Secretary of Homeland Security, Kirstjen Nielsen expanded warrantless searches at the US-Mexico border. This was part of the Trump administration's controversial policy of separating parents and children accused of crossing the border illegally.

US law has long provided a border search exception to the Fourth Amendment's warrant or probable cause requirement, allowing federal agents to search people and their belongings at border crossings without a warrant or probable cause. However, this exception does not apply to electronic devices, which are considered "nonroutine" searches.

In December 2018, Nielsen announced a new government policy called the "Migrant Protection Protocols" (MPP), or "Remain in Mexico". This policy forced non-citizens seeking admission from Mexico to return to Mexico to await their removal proceedings. This policy was challenged in court, with a lawsuit arguing that it undermined the United States' domestic and international legal obligations to ensure non-refoulement of individuals who had expressed a fear of returning to Mexico. The lawsuit also detailed the abusive practices of CBP officers in implementing the MPP, including coercing individuals into signing documents they did not understand and verbal abuse.

In addition to the expansion of warrantless searches, Nielsen also oversaw the use of tear gas at the border and the implementation of the family separation policy, which has been widely criticised as inhumane.

Nielsen's restriction of asylum and protections for immigrants

On December 20, 2018, then-Secretary of Homeland Security, Kirstjen M. Nielsen, announced a new government policy, the so-called "Migrant Protection Protocols" (MPP), which would force noncitizens seeking admission from Mexico to return to Mexico to await their removal proceedings. The policy was to be implemented "on a large scale basis", beginning with San Ysidro Port of Entry in California on January 28, 2019.

Nielsen stated that the measures would "bring the illegal immigration crisis under control", "uphold the rule of law", and "strengthen our humanitarian commitments". She argued that the policy would reduce illegal migration by removing the incentive for people to make the dangerous journey to the United States, and would allow the government to focus more attention on those who were "actually fleeing persecution".

The policy was criticised by Church World Service President and CEO, Rev. John McCullough, who said that it would "put more vulnerable children and families [...] in grave danger as they are forced to remain in Mexico for months or years while their claims are processed". He also argued that the policy violated the United States' "moral and legal obligations".

A lawsuit was brought challenging the policy, alleging that it undermined the United States' domestic and international legal obligations to ensure non-refoulement of individuals who have expressed a fear of return to Mexico. The lawsuit also specified the "grossly deficient—and at times abusive—practices of CBP officers in implementing the MPP policy", including coercing individuals into signing documents they did not understand, and verbally abusing or threatening them.

On April 8, 2019, a federal district court issued a preliminary injunction blocking MPP. However, the government appealed, and the Ninth Circuit granted a stay of the preliminary injunction on May 7, 2019, allowing MPP to go back into effect.

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