Deal reached on family separation
Proposal would restrict similar policies in future
Families separated at the U.S.-Mexico border under former President Donald Trump’s “zero tolerance” policy would receive an easier path to asylum, permission to work in the U.S. and medical, legal and housing benefits, under a settlement filed Monday in a longstanding lawsuit between immigrant advocates and the federal government.
If approved, the settlement would also expand the total number of families who qualify from 3,900 to more than 4,400. And it would bar the federal government from launching similar policies in the future.
The proposed settlement would be one of the first among dozens of lawsuits filed on behalf of families separated by border authorities under the Trump administration. While it would end one case, it doesn’t address monetary compensation for families, which is being sought in other lawsuits.
“Nothing can fully erase the harm the Trump administration inflicted on these little children,” said Lee Gelernt, an attorney with the ACLU and lead counsel in the case, “but this settlement is an important step forward.”
The settlement agreement, filed in federal court in San Diego, now goes to U.S. District Court Judge Dana Sabraw for consideration.
A policy and a backlash
The Trump administration’s zerotolerance policy directed Border Patrol agents to separate young children from their families as their parents were tried in federal court on misdemeanor charges for crossing into the United States without proper documentation.
Department of Homeland Security officials initially defended the policy, saying they were abiding by the law: Parents entering the country had been charged with a crime, and children couldn’t stay with them. But as the numbers mounted, so did backlash.
Children were held in emergency Border Patrol facilities and in a variety of shelters overseen by government contractors. Images of separated youths circulated in the media, with audio and video of toddlers crying for their parents.
The administration rescinded the policy within months. By then, thousands of children had been taken from parents, many of whom had already been deported.
In February 2018, the ACLU and other advocate groups filed a lawsuit on behalf of a Congolese mother who was separated from her 7-year-old daughter at the border. That lawsuit, known as “Ms. L. v. ICE,” or Immigration and Customs Enforcement, was the basis for a federal judge to order the practice stopped and all families reunited. It grew to become a class-action suit on behalf of all separated families.
Over the years, though, both sides fought over how to tally the true number of families separated by the government – and how best to reunite them. In 2021, President Joe Biden ordered the creation of the Interagency Task Force on the Reunification of Families. As of October, the task force has helped reunite more than 750 families.
Advocates believe at least 500 and up to 1,000 children remain separated from their families because of the policy.
Services to address trauma
The 46-page proposed settlement would expand the definition of families separated to include those from the first six months of the Trump administration during a so-called “pilot program” that predated the full policy. The settlement will also include adults who were not parents but can show they were the child’s legal guardian at the time of separation.
Many families who were separated and later reunited still await a ruling on their immigration status, said Conchita Cruz, co-executive director of the Asylum Seeker Advocacy Project. The settlement would help them move through the process faster and grant them work permits while their cases proceed. “This has been a long time coming,” she said.
Though the new settlement does not address monetary payouts, it offers medical and behavioral health services for families, something immigrant rights activists have wanted for years. Youths separated from their parents have displayed signs of post-traumatic stress disorder, depression, trouble sleeping and anxiety months after reunification, according to activists.
A 2021 study by Physicians for Human Rights found that all of the 31 families they reviewed who were forcibly separated at the border exhibited serious psychological disorders, including PTSD, major depressive disorder and anxiety disorder, even years after their separation and regardless of the length of time they were apart.
“We still have many aspects of our personal and psychological lives that are affected by this,” said Daniel Paz, a native of Honduras who was separated from his 6-year-old daughter, Angie, at the U.S.-Mexico border near El Paso in 2018. For years, Angie suffered from nightmares and panic attacks.
“Day to day, we still relive it,” Paz said. “Any psychological help for the families will be a blessing. It’s really hard to go through what we went through.”
A limit on future separations
Another key part to the settlement is drastically limiting how the government can separate immigrant families in the future. Under the agreement, migrant children will not be separated from their families except for a few limited reasons, such as if the parent or legal guardian poses a threat to the child, or is wanted for a felony.
“The practice of separating families at the southwest border was shameful,” Attorney General Merrick Garland said in a statement. “This agreement will facilitate the reunification of separated families and provide them with critical services to aid in their recovery.”
All separations must be documented in databases shared among the Department of Homeland Security, the Department of Health and Human Services and other agencies involved in housing migrants. Immigrant attorneys must be promptly notified and allowed to challenge the separations.
At a CNN town hall in May, Trump said he wouldn’t rule out reimplementing family separations at the southern border if elected president again, saying, “When you have that policy, people don’t come.”