Settlement in family separation lawsuit bars similar border policies

According to figures from the Department of Homeland Security in February, 3,881 children were separated from their families between 2017 and 2021.
People who've been taken into custody at the U.S.-Mexico border.
Posted at 2:55 PM, Oct 16, 2023

A settlement filed Monday in a long-running lawsuit over the Trump administration’s separation of parents and their children at the border bars the government from similar separations for eight years while also providing benefits like the ability for their parents to come to America and work, according to the Biden administration.

The settlement between the Biden administration and the American Civil Liberties Union, which has been representing families separated from their children, still has to be approved by the judge. But if finalized, it would make it much more difficult for any administration, including former President Donald Trump, the front-runner for the Republican presidential nomination, to revive one of his most controversial tactics to halt immigration at the southern border if he wins next year’s election.

“It is our intent to do whatever we can to make sure that the cruelty of the past is not repeated in the future. We set forth procedures through this settlement agreement to advance that effort,” Homeland Security Secretary Alejandro Mayorkas told The Associated Press.

The Trump administration separated thousands of children from their parents or guardians they were traveling with as it moved to criminally prosecute people for illegally crossing the southwestern border. Minors could not be held in criminal custody with their parents. They were transferred to the Department of Health and Human Services and then typically sent to live with a sponsor, often a relative or someone else with a family connection.

Faulty tracking systems by U.S. officials caused many children to be apart for an extended time or never reunited with their parents. Facing strong opposition, Trump eventually reversed course in 2018, days before a judge put a halt to the practice after a lawsuit brought by the ACLU. During a CNN town hall earlier this year, Trump didn’t rule out once against separating families.

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Lee Gelernt, lead counsel for the ACLU, praised the settlement.

“This settlement means that babies and toddlers will finally get to see their parents after years apart and that these suffering families will have an opportunity to seek lawful status. It also crucially bars an attempt by a future administration to reenact another family separation policy,” said Gelernt. “Nothing can make these families whole again but this is at least a start.”

President Joe Biden issued an executive order on his first day in office to reunite families. According to figures released by the Department of Homeland Security in February, 3,881 children were separated from their families from 2017 to 2021. About 74% of those have been reunited with their families: 2,176 before a Biden administration task force was created and 689 afterward.

Hundreds of families sued the federal government, seeking both monetary damages and policy changes.

This settlement filed in federal court in San Diego does not include monetary damages. But it does provide key benefits including authorization for parents of separated children to come to the U.S. under humanitarian parole for three years and work in the U.S. The families receive some help with housing and medical and behavioral health benefits designed to address some of the trauma associated with the separations.

Mayorkas described how he'd met with a woman who had been separated from her daughter and how after they had been reunited, her daughter still struggled with the experience.

“We need to help these families heal. And that is an obligation that we carry because of the pain that we inflicted upon them,” he said.

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They’ll also get access to legal services which will be vital as they may file asylum applications to stay in the United States on a permanent basis. The settlement also waives the usual one-year timeline limiting when someone can apply for asylum, and the parents can apply even if they were previously denied, Gelernt said. A special team of supervisors will review their cases.

Some of these benefits were already available to families under a Biden administration created task force designed to reunite separated families. But Gelernt said the settlement goes beyond the task force’s purview in key ways such as the asylum assistance. The settlement also bars future separations, which the task force did not, and Gelernt said a future administration could have disbanded the task force whereas the settlement is binding.

Under the settlement, it would still be possible to separate children at the border from their parents or guardians, but under limited scenarios, as has been the case for many years. They include if the child is being abused or the parent committed a much more serious crime than crossing the border illegally.

The settlement requires the government to keep detailed documentation when it does separate children from parents so as to avoid the chaos that erupted during the Trump-era family separations when parents and children could not be reunited.

At one point in 2021, the administration was negotiating a possible payout of hundreds of thousands of dollars to each parent and child who was separated. Word leaked on negotiations and produced a political backlash.

Now that the government and the ACLU have agreed on a settlement plan, the judge will hold a hearing to decide whether to accept it. Before that, people opposed to the settlement can raise objections to the judge.