Settlement negotiations for separated families become political issue—11-05-21

Immigration news, in context

This is the 101st edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

• In The Big Picture, we dig into the news that families separated by the Trump administration may be given monetary settlements of up to $450,000 per claimant.

• In Next Destination, we dissect the Biden administration’s decision to re-open land borders for non-essential travel.

The Big Picture

The news: The issue of a potential monetary settlement for families separated under the 2018 “zero tolerance” policy and its earlier pilots—often known simply as family separation or “kids in cages,” though that moniker has some problems—exploded into public view this week. On Wednesday, reporters asked President Joe Biden  about a Wall Street Journal report of potential $450,000 settlements per claimant. Biden appeared to be caught off guard and rejected the idea off the cuff, only for the White House to later walk that rejection back. The whole thing left observers confused about what exactly was being negotiated, among who, and when it was expected to happen. That is, of course, where we come in.

What’s happening?

We haven’t discussed family separation in this newsletter much lately, but it’s undeniable that it is the most widely-known and emblematic punitive immigration policy of the many that were enacted throughout the Trump era. While family separations continued in a limited fashion afterwards, typically as a result of individual agents deciding to take kids from non-parental relatives like aunts and uncles (a longstanding government practice) or making snap decisions about parents’ fitness to care for their own kids, the formal policy as such was relatively short-lived for its outsize impact and public prominence. Pilots began in late 2017, and the broader policy—which, as a reminder, utilized a criminal illegal entry statute to justify the separations, as parents were taken into criminal custody—ran from April to June 2018, when it became essentially the only Trump immigration initiative retired not because of court action but due to sheer public outcry (more on the history below).

The total number of people known to be affected by such separations has shifted as new facts come to light. The Biden administration’s interagency reunification task force claimed in its first report, released this past June, that at least 3,913 children had been verified as being separated from their parents, with an additional 1,723 under review. The ACLU has previously calculated a total of around 5,500 children. These might not be huge numbers in comparison to the volume of people affected by policies like MPP and Title 42, but most parties involved here and the public at large have determined that the level of harm done here exists on a tier above the rest.

For all of these reasons—the relatively limited number of potential plaintiffs, the intense public interest, the irrefutable and irreparable damage done, the efforts to locate and identify each and every potential plaintiff—the idea of seeking remunerative and punitive damages in a class-action suit seemed both feasible and perhaps necessary. While in theory a political calculation should not come into play when discussing federal litigation, it’s also true that the plaintiffs’ attorneys in this case have judged that there’s a limit to how hard the government could fight back here given the widespread disgust at its actions, with this especially being the case now that the president is a Democrat who himself horror at his predecessor’s policies.

In terms of the actual mechanisms at play here, first of all let’s note that this is not the same class-action lawsuit that is forcing the reunification of separated families. That much better-known suit is Ms. L v. ICE, filed by the ACLU way back in March of 2018, which initially sought to have the family separation policy declared illegal and then, once it was retired, sought to have the government reunite the families that had been separated. As we’ve written about before, this took the form of the establishment of a steering committee formed of several nonprofit organizations and a large law firm which, under the supervision of the judge, would work with the government to locate, contact, and reunite the families. That process is ongoing, with status reports being released periodically (the latest came this past Wednesday, noting, among other things, that the committee is still trying to contact the parents of 270 children).

The lawsuit where settlements are being discussed is a separate class-action, A.I.I.L. v. Sessions, also filed by the ACLU but this time in October 2019 in the U.S. District Court of Arizona. It’s a simpler suit that restates much of the painful fact patterns we’ve all come to learn about the separations. There are a number of specific pseudonymous plaintiffs, including both parents and children who were separated by the government and held for varying lengths of time, some of whom are currently in the U.S. and some of whom have been deported. They describe being lied to by immigration officials, not given information about their family members, being held in unsanitary conditions, having health claims ignored, and suffering from lingering effects including post-traumatic stress disorder and depression.

Ultimately, the litigation is filed on behalf of all class members, which are defined as falling into two buckets: “​​all minor children who since 2017 have arrived at or between ports of entry along the United States’ southern border, and who have been separated from their parents by DHS or its sub-agencies (including CBP, ICE, or USCIS) without a demonstration in a hearing that the parent was unfit or presented a danger to that child,” and the parents of these children. Like earlier litigation, this defines the relevant class members as those for whom no just cause for separation was shown in a hearing, which still leaves out a number of people separated under barely-substantiated charges of posing harm, but that’s probably a requirement to get the class approved.

The defendants are a number of former federal officials across the Trump administration, including then-Attorney General Jeff Sessions, former DOJ official Gene Hamilton, John Kelly, Stephen Miller, and various secretaries and officials at the White House, Homeland Security, and Health and Human Services. The plaintiffs are presenting eight claims total. Five of these are purported violations of the Fifth Amendment, including various due process and equal protection violations; one is under the Fourth Amendment, a violation of unreasonable search and seizure; and the remaining two under federal laws surrounding conspiracy to interfere with civil rights and the refusal or neglect to prevent or aid in preventing such a conspiracy. These claims are in part based on the (pretty well-documented) argument that the administration intentionally wanted to violate these migrants’ rights and did so in part as a result of racial animus towards them specifically.

As a result, the plaintiffs are seeking both compensatory damages for the harm done to them, as well as punitive damages against the government, a recovery fund to provide health services to class members, interest, and attorney fees. The litigation is ongoing, with a number of former federal officials being called to testify. The settlement negotiations that have been reported on are part of this process, which would culminate in a negotiated settlement that would head off the need for a more lengthy and intensive process. It is not the only such lawsuit that has been filed on behalf of a separated family, though it is the only class-action one. Others have been filed on behalf of individual families, and some are still pending, but would presumably be rendered moot by a general settlement that included all class members.

How we got here

The Trump administration quietly implemented its zero-tolerance policy in late 2017, in a pilot program first reported on by Lori Kriel, formerly of the Houston Chronicle. Per Kriel’s reporting, there was an increase in prosecutions for illegal entry—a federal misdemeanor—in Texas, as well as an increase in children being referred to shelters for unaccompanied migrants despite having arrived at the border with their parents.

By 2018, the administration had expanded the policy beyond Texas. In an April 2018 press release, months after the separations had begun, then-Attorney General Sessions warned that “illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice.” The fact that many of the families separated from their children—including those who entered the U.S. between ports of entry—planned on asking for asylum did not matter to the administration. The goal wasn’t to crack down on “illegal” immigration; it was deterrence all the way down. “We need to take away children,” Sessions said in an April 2018 meeting with prosecutors, as reported by The New York Times. A staffer’s notes from the meeting succinctly summed up the administration’s position: “if care about kids, don’t bring them in. Won’t give amnesty to people with kids.”

Separations were the Trump administration’s way of circumventing the Flores settlement agreement. The landmark consent decree forbids the federal government from indefinitely detaining migrant children, even if they’re with adult relatives—though, to be clear, the government violates Flores constantly. That doesn’t mean the federal government can’t keep minors in CBP or ICE custody, but that it can only do so for a certain period of time. But migrant children can’t be taken into criminal custody just because their parents are. Prosecuting parents, and thereby transferring them from immigration custody into criminal detention (because, remember, immigration cases are civil and handled in DOJ administrative courts and immigration detention isn’t supposed to be punitive, at least from a legal perspective) was the legal pretext for separations. 

One fundamental problem with  the administration’s justification for family separation, aside from the obvious human rights violation of it all, was that many of the families separated under the policy didn’t cross the border illegally in the first place. Some families who presented themselves at ports of entry and asked for asylum were separated anyway. If illegal entry prosecutions were the trigger for separations, there was no legal justification for separating families who did not cross the border illegally. Ms. L., the Congolese asylum seeker who brought one of the initial suits against the family separation policy, was one such case. 

There was also the fact that the administration largely denied that it had a policy of separating families. News reports of the government’s own actions proved otherwise, but the denials continued until June 2018, when then-DHS secretary Kirstjen Nielsen tweeted “We do not have a policy of separating families at the border. Period.” Before the end of the month, Trump signed an executive order ending the policy. The administration had gotten so much bad press over the family separations, which it had botched so drastically, that even the most ardent nativists in the White House saw no other way out. A week after Trump’s order came down, the judge overseeing the Ms. L. case ordered the administration to reunite the families it had separated.

The reunification process brought yet another issue to the fore: the government didn’t keep adequate records of which children corresponded to which parents. Families who arrived at the border were first encountered by either Border Patrol or other Customs and Border Protection officers; parents who were prosecuted for illegal entry were transferred to the custody of the U.S. Marshals, while children were sent to shelters operated by the Office of Refugee Resettlement. After being declared guilty, parents were often then transferred back to immigration custody and detained in ICE facilities. Both the parents’ and children’s cases were handled by the immigration courts, overseen by the Executive Office for Immigration Review, which is housed within the Department of Justice—which at the time was under the purview of Sessions, who implemented zero-tolerance in the first place. And the children and parents didn’t have the same immigration cases, because there was no record that the families were linked at all. Some parents were deported without their children, making it difficult for the government to track them down.

One of Biden’s first acts in office was to announce the creation of a family reunification task force. (The actual task force came a few months later.) As we noted above, the task force released its first report this June and the steering committee is still working on finding some of the parents who had been separated from their children. Family separation was one of the Trump-era policies the Biden campaign took the hardest stance against. The Biden administration now has to finish cleaning up the mess its predecessor created, though given Biden’s comments, there’s always a chance that—as with other immigration issues—concerns about political optics could eclipse the issue itself.

What’s next?

It’s important to be aware that this $450,000 per-person figure is very much a preliminary one, as negotiations remain ongoing. If this figure held, this would mean most families would receive a total of $900,000, as there would be two claimants (parent and child). For larger families that experienced separations, additional payouts would be layered on top. It’s unclear from the documentary record so far exactly how much the plaintiffs would be seeking in the event of a full judgement in their favor for this particular suit (there’s no dollar amount in the complaint) but the Journal reported that across all family separation lawsuits the average claim made was for $3.4 million, significantly more than $450,000 per claimant where negotiations have ended up for now.

There’s obviously not much precedent here. One previous tort claim for a separated family netted a $125,000 settlement in a federal court in New Jersey, but that’s just a federal tort claim, whereas A.I.I.L is alleging a number of grievous violations to the Constitution and federal law, including a government conspiracy, as well as seeking punitive damages. After the latest figure was widely noted this week, the ACLU Executive Director Anthony D. Romero told CNN that the government had DOJ attorneys had gotten in touch to say $450,000 per claimant was “higher than anywhere that settlement can land,” throwing into question whether the administration will ultimately be amenable to something in that range.

Still, the administration almost certainly will want to reach a settlement, and do so soon. It is not a good look to be seen as fighting against compensation for the families so harmed by zero tolerance. While Biden has gotten away with maintaining a decent amount of Trump-era policy at the border, particularly with Title 42, the separated families are a sacrosanct to his moderate liberal base, which may excuse the mass expulsions of Haitian asylum seekers but won’t forget a confrontational showdown with the kids they made into their immigration rallying cry three years ago.

There is of course the risk of creating the precedent that migrants illegally harmed by the government, of which there are many more than the 5,500 or so children plus their parents at issue here, can sue and receive financial compensation for the damage done to them. However, the public cachet, egregiousness of conduct, and obvious harms here make this case conducive to such a settlement in a way few other immigration-related policies might be. It’s much harder to imagine, for example, a class of Title 42 expellees suing for compensation even if a federal judge eventually rules that the policy was always unlawful.

Then there’s the issue of what’s happening with separated families writ large. The steering committee and task force have managed to continue a limited number of reunifications in the United States, but have yet to fundamentally solve the problem of permanent legal status for them. For now, temporary humanitarian parole is being used, which is only a stopgap solution.

Next Destination

U.S. to re-open land borders with Mexico and Canada for non-essential travelers

Starting November 8, vaccinated Mexican and Canadian nationals with visas will be able to drive or walk into the U.S. for the first time since spring 2020. The Trump administration suspended entry of non-essential travel via land borders at the onset of the pandemic. The ban carried over into the Biden administration, even as other forms of non-essential travel—such as tourism—resumed. As things stand right now, Mexican and Canadian visa holders can fly into the U.S., but they can’t drive. U.S. travelers, meanwhile, face little to no restrictions on their ability to travel to either country.

This asymmetrical situation has been particularly devastating for cross-border communities in the U.S. southwest. Before the pandemic, hundreds of thousands of people crossed from Mexico to the U.S. via land borders every day. The pandemic travel restrictions did not affect U.S. travelers who crossed into Mexico, but they did affect Mexican travelers who sought to come to the U.S. to shop, visit relatives, or seek medical treatment.

The Biden administration’s decision to resume non-essential travel at land borders is a welcome one for residents of cross-border communities, but it also raises questions about other pandemic-related travel restrictions—notably Title 42, the public health rule that has led to the mass expulsion of asylum seekers at the U.S.-Mexico border. If the administration is saying the pandemic has become manageable enough that non-essential travelers can cross into the U.S. via ports of entry, its legal justification for keeping out asylum seekers at those same ports of entry may no longer hold up.