Family separation suit in danger
The Biden administration says three Bay Area immigrant families separated at the U.S.-Mexico border under President Donald Trump’s “zerotolerance” policy have no right to sue the government for damages. The families and their lawyers say the administration’s legal argument is a betrayal of President Biden’s campaign promises.
“By sending its lawyers to try to throw separated families out of court, the Biden administration is effectively defending Trump’s cruel and unlawful family separation policy,” attorney Bree Berwanger of the Lawyers’ Committee for Civil Rights said Thursday after the Justice Department asked a federal magistrate in Oakland to dismiss the families’ lawsuit.
In Wednesday’s filing, lawyers from the U.S. attorney’s office in San Francisco said the administration “does not defend the merits of the policies at issue in this case,” and cited Biden’s description of forced family separation as a “human tragedy” that he would not repeat while in office. But they argued that the separations of the three families now living in the Bay Area were “policy choices” that are legally immune from damage suits.
The families’ lawyers said the filing was the government’s first since the Biden administration withdrew in mid-December from negotiations seeking to settle claims by families separated at the border.
The families — two men with sons ages 11 and 13, and a woman and her 6-year-old daughter — reached the border in Arizona separately in May 2018. The parents, from El Salvador and Guatemala, said they were fleeing persecution in their homeland and planned to file for asylum in the United States.
A month earlier, thenAttorney General Jeff Sessions and other Trump administration officials had begun separating parents from children at the border as part of a broader “zero tolerance” policy to discourage border crossings. They terminated the separations in July 2018, but by then more than 3,000 children had been taken to locations unknown to their parents, and several hundred have not yet been reunited.
One parent in the lawsuit said he and his 11year-old son, after being assaulted by criminals south of the border, were held by Border Patrol officers in a filthy, freezing cell for two days, then separated. By the time he learned his son’s whereabouts from acquaintances a month later, the man said, he had become ill and his son had been sexually assaulted by another detainee while in custody. But with financial help from strangers, he said, both he and his son were able to travel to San Francisco to stay with relatives after two months of separation.
The woman in the suit said she was taken to an immigration facility in Texas, and her 6-year-old daughter to another facility in New York, before they were reunited after 10 weeks. They now live in Oakland.
“I still live with the pain of my daughter being taken from me,” the woman, a native of Guatemala identified as Erendira C.M., said in a statement released by her lawyers. She said she and other parents attended a meeting in August with Biden’s Homeland Security secretary, Alejandro Mayorkas, who promised to support the separated families, and feels “sad and deeply betrayed now that they’re fighting us in court.”
In Wednesday’s filing, government lawyers said the case should be heard in Arizona, where the actions challenged in the suit took place, and not in California. But while other federal courts have been divided on whether the government can be sued for damages in such cases, the lawyers said, the “better reading of the law” is that such suits must be dismissed.
Federal law does not allow suits seeking compensation for “discretionary” decisions by the government, regardless of its motives, the lawyers argued. Here, they said, decisions to separate immigrant parents and children “involved an element of judgment or choice” and were matters of government policy, regardless of the merits of that policy or the fact that it was later revoked.
The lawyers requested a hearing March 2 on their request to dismiss the families’ suit.