WASHINGTON — In a letter to all U.S. attorneys Tuesday, President Joe Biden’s acting attorney general, Monty Wilkinson, officially rescinded the Trump administration’s “zero tolerance” program, which led to the separation of over 3,000 migrant families, according to a copy of the letter obtained by NBC News.
Although it is largely symbolic, the move officially removes the policy from the Justice Department’s guidance to federal prosecutors and instructs prosecutors to use discretion when prosecuting misdemeanor border offenses.
Former President Donald Trump ended the practice of separating migrant children when their parents were prosecuted in an executive order in June 2018, but the policy of zero tolerance, which directs U.S. attorneys to prosecute anyone who crosses the border illegally, even for misdemeanors, was never officially rescinded.
Wilkinson’s memo, titled “Rescinding the Zero-Tolerance Policy for Offenses Under 8 USC 1235,” refers to the section of the criminal code for misdemeanor offenses for crossing the border without proper documentation. Although immigrants can still be deported if they do not have documents or protections to stay in the U.S., they typically are not charged in federal court and separated from their children.
Before zero tolerance, more serious border offenses, including violent offenses or illegal re-entry at the border, were more commonly charged in federal court.
Rather than tell prosecutors never to prosecute misdemeanors, Wilkinson’s letter advises them to use discretion rather than a zero-tolerance approach.
Wilkinson said the Justice Department’s Principles of Federal Prosecution tell prosecutors that they should “take into account other individualized factors, including personal circumstances and criminal history, the seriousness of the offense, and the probable sentence or other consequences that would result from a conviction.”
“A policy requiring a prosecutor to charge every case referred for prosecution under 8 USC 1225 without regard for individual circumstances is inconsistent with our principles,” Wilkinson said in the letter.
Lee Gelernt, deputy director of the Immigrants’ Rights Project of the American Civil Liberties Union, who has been involved in the legal battle to find and reunite families separated under zero tolerance, said guidance to prosecutors is helpful but does not fully rule out the possibility of a migrant parent’s being charged and separated from a child only because the parent committed a misdemeanor by crossing the border illegally.
Gelernt said Congress would need to act to make sure migrant family separations do not happen again.
“While the zero tolerance memo is a good start, what is really needed is for Congress to repeal provisions authorizing criminal penalties for illegal entry,” he said. “In the meantime, we hope the Biden administration will not prosecute parents for illegal entry where doing so would mean family separation.”
Julia Ainsley is a correspondent covering the Department of Homeland Security and the Department of Justice for the NBC News Investigative Unit.
Jacob Soboroff is a correspondent for NBC News and MSNBC and author of the New York Times bestseller “Separated: Inside an American Tragedy.”