Trump-era policy separating migrant parents from children: Deal would settle key lawsuit

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 long-standing 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 Trump administration’s zero-tolerance 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 public backlash. Children were held in emergency Border Patrol facilities and in a variety of shelter settings overseen by government contractors. Images of separated youths circulated in the media, along with audio and video of toddlers in holding facilities, crying for their parents.

The administration rescinded the policy within months. By then, thousands of children had been taken from their parents, many of whom had already been deported.

How zero-tolerance policy sparked immigration lawsuit

In February 2018, as separations ramped up, 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 to help locate and reunite families. As of October, the task force has helped reunite more than 750 families.

"The Department of Homeland Security has taken steps to ensure that the prior practice of separating families does not happen again, and we are continuing the work of reuniting children with their parents,” Secretary of Homeland Security Alejandro Mayorkas said in a statement.

How many immigrant families were separated

Monday’s 46-page settlement proposal, if approved by a court in December, will 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 a child’s legal guardian at the time of separation. These moves open the door to more than 500 more families.

Advocates believe at least 500 and up to 1,000 children remain separated from their families because of the policy.

Many families separated at the border and later reunited are still awaiting a ruling on their immigration status, said Conchita Cruz, co-executive director of the Asylum Seeker Advocacy Project. The settlement would help them through the process faster and grant them work permits while their cases proceed.

It would also set agreements that would be adhered to for years to come, regardless of who’s in the White House, she said.

“It impacts all the families that were separated under zero tolerance, including the pilot program,” Cruz said. “This has been a long time coming.”

Even as it settles this case, the federal government continues to fight monetary damages for separated families in a slew of other lawsuits.

Investigation: Biden said Trump-era family separations were 'abhorrent.' So why is DOJ fighting relief claims?

Zero-tolerance policy's effect on mental health

Though the new settlement does not address monetary payouts, it offers medical and behavioral health services for families, something that immigrant rights activists had been pressing for years. Youths separated from their parents at the border, some of whom were as young as 6 months old, have displayed signs of post-traumatic stress disorder, depression, trouble sleeping and anxiety months after returning to their families, 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’re going on five years now, and 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, Texas, in 2018. For years after, Angie suffered from nightmares and panic attacks.

“Day to day, we still relive it,” he said. “Any psychological help for the families will be a blessing. It’s really hard to go through what we went through.”

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Another key part to the settlement is drastically limiting how the government can separate immigrant families in the future. Under the agreement, migrant children would 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 if they’re 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 shared databases between DHS, the Department of Health and Human Services and other agencies involved in housing migrants. Also, immigrant attorneys must be promptly notified and allowed to challenge the separations.

The settlement agreement, filed in federal court in San Diego, now goes to U.S. District Court Judge Dana Sabraw for consideration.

Advocates generally applauded the terms of the settlement, while urging the Biden administration to go further and offer a pathway to citizenship and protection from deportation for affected families.“While no settlement could ever fully heal the trauma that these families — and particularly the children — will live with for the rest of their lives, it’s a first step toward moving past that horrific time and ensuring that the large-scale separation of families at the border never happens again,” said Jennifer Podkul, vice president of policy and advocacy at Kids In Need of Defense, an advocacy group.

What if Trump is reelected?

At a CNN Town Hall meeting 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.”

Gelernt, the settlement’s lead counsel, said it was important to have the settlement address the policy itself and prevent it from ever happening again, especially given the prospect of next year’s presidential election.

“It was essential for us not only to help the families who had been separated under the Trump administration but to ensure no future administration repeats this,” he said.

This article originally appeared on USA TODAY: Trump policy separated migrant families. Now, they have deal with US.