CBP Commissioner: ‘Our Policy Does Not Authorize Tear Gassing Young Children, Nor Did That Happen’

By Melanie Arter | December 12, 2018 | 3:28pm EST
CIUDAD TECUN UMAN, GUATEMALA - OCTOBER 19: A child takes cover as Mexican riot police clash with the migrant caravan on the border of Mexico and Guatemala on October 19, 2018 in Ciudad Tecun Uman, Guatemala. The clash occurred when the caravan of thousands tried to enter Mexico, crossing over the international bridge after pushing past Guatemalan security forces. The caravan opened the gate into Mexico but was pushed back by Mexican riot police. Some immigrants threw stones at the police who then fired tear gas into the crowd. (Photo by John Moore/Getty Images)

(CNSNews.com) – CBP Commissioner Kevin McAleenan told the Senate Judiciary Committee on Tuesday that the U.S. Customs and Border Patrol’s policy “does not authorize” the tear gassing of young children and that that did not happen, despite attempts by Sen. Dianne Feinstein (D-Calif.) to assert otherwise.

“While we’re on the subject of tear gas being used, has CBP ever fired tear gas at young children on the border prior to November 25th?” Feinstein asked McAleenan during questioning.


“Just to clarify, senator. We did not fire tear gas at young children on November 25th, but yes, CS gas has been used to address large groups seeking to enter unlawfully actually in San Diego sector in the same exact area almost five years to the day, a large group that did include women and children in it as well,” the commissioner said.

“Well CBP’s use of force manual as I understand it does not specifically authorize tear gassing young children. Do you think CBP needs to make any changes to its use of force policies to make sure that children are not harmed going forward?” the senator asked.

“First of all, no, of course our policy does not authorize tear gassing young children nor did that happen. Just to say that again in this case,” McAleenan responded.

“I can give you a picture that was on CNN,” Feinstein said.


McAleenan said “the full description” of the situation would come out in the review, and he promised transparency about the review’s findings.

“Our use of force policy has been rigorously reviewed. It was built on recommendations from the Police Executive Research Forum, and it’s resulted, as the chairman noted, in significant improvements across the board,” he said.

The commissioner pointed to the decrease in the number of times CBP agents used force with a firearm in contrast to the number of assaults on CBP agents.

“I would offer that I don’t think any law enforcement agency in the U.S. has made more progress in the training and the tactics used by our officers and agents than CBP. In 2012, we had 55 uses of force with a firearm. In 2018, we had 15 despite increasing numbers of apprehensions and assault, so we’re making tremendous progress in this area,” McAleenan said.

Feinstein asked McAleenan who authorizes the use of tear gas by CBP, to which the commissioner responded, “So law enforcement use of force is driven by the circumstances that an officer or agent encounters in the field during their mission. They are looking at a totality of the circumstances, the threat presented---”

“Who—what position is charged with giving the direction to use it?” Feinstein asked.

McAleenan said there’s no top-down approach to the use of tear gas. It’s a decision made by CBP agents in the field, who are trained and certified in the use of “less lethal devices” like tear gas.

“So the direction to use it is not given from top-down chain of command perspective. The use of less lethal devices is authorized. We then have agents trained and certified. They’re allowed to carry those devices, but the individual agent on the scene makes the decision on whether to deploy a less lethal device to address the situation,” he said.

“So what you’re saying is, on the 25th, one agent made the decision to use tear gas. How many agents used tear gas?” Feinstein asked.

“That’s all being reviewed in the overall review, and more than one agent made that decision based on the risk and threat they were present with in again multiple engagements across about 2 ½ miles of border,” the commissioner said.

“Well the picture that I have that ran on CNN shows a mother pulling a child, the second child on her other arm with a diaper, and tear gas rolling in behind them, and I think that’s not a picture or an act that befits this country,” Feinstein said.

“I respect that view, Senator. It’s very unfortunate that women and children were in the vicinity of this large group that was trying to enter the United States. I don’t know that that picture accurately tells the full story of the scope of events on that Sunday,” McAleenan said.

“I’m sure it does not, but nonetheless, that’s what was photographed, and I think that’s the realization of the use, and you yourself pointed out the large number of children and increase in numbers over the years, and that’s one of our great concerns, but I want to go on, and I want to ask you about the separation of children from their parents,” Feinstein said.

“I know Border Patrol doesn’t have a lot to do with it, but how many children have been separated from their parents at the border since June 20th?” the senator asked.

“So by the U.S. Border Patrol, approximately 81, so less than one a day,” McAleenan replied.

When asked whether any children have been separated solely because their parents entered the United States without a visa,” the commissioner said, “No.”

When asked whether he was aware of “any discussions or efforts to develop a new family separation policy,” McAleenan said, “No, I’m not, and just to clarify, these separations are done consistent with the guidance in the executive order of June 20th, consistent with the court order in the Mizelle case. They are for child welfare.

“We’re talking about examples of a parent wanted for murder, a parent who’s had a stroke and needs to be taken to the emergency room. Those are the kind of situations where children are being separated at the border. It's for child welfare or a parent who's unable to take care of the child,” he added.

“Well those aren't the only situations where they’ve been separated,” Feinstein said.

“Since June 20th ,” McAleenan interjected.

“As I mentioned to you, my understanding is they’re building four separate places to house children in California alone now, so something’s going on that says that children are being taken from their parents,” Feinstein said.

McAleenan said he couldn’t confirm that new housing is being built in California for illegal immigrant children separated from their parents.

“We’re unable to confirm that senator. I did have our congressional affairs team reach out to HHS to make sure they connected with your staff, but we’re not aware of any additional child centers being built in California,” he said.

“Yeah, I’ll get that information. I’d like to go and see them myself. What is Border Patrol’s standard for determining whether separation is in the best interest of the child?” Feinstein asked.

“We go through the criteria laid out in both the executive and the Mizelle court order, so we’re looking for serious criminal offense that needs to be pursued or prosecuted, a child welfare concern, potentially a history of sexual abuse by the adult that’s involved in the family unit, again a communicable disease or other medical condition that prevents the parent from being able to care for the child,” McAleenan said.


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