By Julia Ainsley and Jacob Soboroff - NBC News
Acting Attorney General Monty Wilkinson sent a letter to all US prosecutors on Tuesday in which he announced the official annulment of the zero tolerance policy adopted under the Administration headed by Donald Trump, which was the cause of the separation of more than 3,000 migrant families, according to a copy of the order obtained by NBC News.
Although largely symbolic, the measure officially removes this policy from the Department of Justice's guidance guide to its federal prosecutors, and also instructs them to use discretion when prosecuting misdemeanors at the border.
Although Trump ended the practice of separating migrant children when their parents were being prosecuted, through an executive order of June 20, 2018,
the zero tolerance policy, which orders prosecutors to prosecute anyone crossing the border illegally
( even for minor offenses) was never officially revoked.
[Interview: "The immigration system does not work for the families who are coming or for the American people"]
Wilkinson's memorandum is titled "Waiver of Zero Tolerance Policy for 8 USC 1235 Offenses."
This numbering refers to the section of the criminal code for minor offenses for crossing the border without proper documentation.
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Although immigrants can still be deported if they do not have documents or protections to stay in the United States, they are generally not charged in federal court and therefore separated from their children.
Before the zero tolerance policy, it was very common for the most serious crimes related to the border (including violent crimes or illegal re-entry across the border) to be prosecuted in federal courts.
[The number of migrant children who are still separated from their families is growing: there are 666 pending to find their parents]
Rather than telling prosecutors never to prosecute misdemeanors, Wilkinson's letter advises them to use discretion and not a zero-tolerance approach.
In his letter, Wilkinson said the Justice Department's "principles of federal prosecution" instruct prosecutors to "take into account other individualized factors, including personal circumstances and criminal history, severity of crime, and likely sentencing. or other consequences that would result from a conviction. "
"A policy that requires a prosecutor to treat all cases referred for prosecution under 8 USC 1225 without regard to individual circumstances is inconsistent with our principles," adds Wilkinson.
Lee Gelernt, deputy director of the American Civil Liberties Union Immigrant Rights Project, who has been involved in the legal battle to find and reunite families separated as a result of the zero-tolerance policy, said targeting the prosecutors
is helpful but does not completely rule out the possibility of a migrant parent being charged and separated from a child
just because the parent committed a misdemeanor while crossing the border illegally.
[Reuniting thousands of migrant families will take up to two years, say government lawyers]
Gelernt said Congress would have to act to ensure that migrant family separations are not repeated.
"While the zero tolerance policy memorandum is a good start, what is really needed is for Congress to repeal the provisions authorizing criminal penalties for trespassing," he explained, "in the meantime we hope the Administration chaired by Joe Biden does not prosecute parents for trespassing when doing so would mean family separation. "