The Trump administration inflicted some of its worst cruelties via the United States’s immigration and deportation machine during its ruinous tenure. The policy of tearing children away from parents under “zero-tolerance” family separation, which created heartrending scenes of state cruelty and unthinkable miseries when it was instituted in 2018, remains one of the more memorable evils of those years.
At the policy’s outset, the American Civil Liberties Union (ACLU) filed a class-action lawsuit in hopes of promptly ending it — which the suit successfully did, thanks to a federal injunction. Securing damages for the families that had already been divided has taken much longer, but the case, known as Ms. L., et al. v. U.S. Immigration and Customs Enforcement, et al., concluded this past week.
On October 16, the ACLU and the several thousand victims it represents reached a settlement deal with the Biden administration. Central to the agreement is the state’s obligation to establish new standards that will curtail future family separations. (Though this stricture, it’s worth noting, is neither total nor permanent.) The affected families will also be granted lawful entry qualifications, work permits and social services. Still, any kind of financial reparations were conspicuously absent from the deal.
Taking a wider view, despite promises to reverse damage done under Donald Trump, President Joe Biden has broadly maintained Trump’s immigration status quo — and his administration has, in some circumstances, continued carrying out separations, if not with the same alacrity as its predecessor. The recent settlement, rightly celebrated as a win, is by necessity a limited one, and remains far from an inviolable barrier to future harms. “Separating families” under other legalized guises remains a central task of the U.S. immigration regime.
A Long Court Battle
The ACLU lawsuit sought damages for the harms that the Trump-era zero-tolerance policy inflicted, which were grievous indeed — constituting conduct that extended to “child abuse” and “torture.” (These terms are not used colloquially; they were explicitly applied by experts.) The Health and Human Services inspector general also indicated in a 2019 report that the children in question were subject to severe trauma and mental health impacts.
The ACLU initially filed the suit on behalf of a Congolese asylum seeker (the named plaintiff, “Ms. L.”), whose 7-year-old daughter had been stolen from her. Ultimately, the lawsuit would come to represent more than 4,000 children and their families.
Trump’s 2018 policy was so repugnant that it sparked intense backlash — enough to spur Trump to partially retract it on June 20, 2018, in a rare move for any president, especially him. It was later found that the administration had, in its enduringly bumbling malice, failed to track where many children were sent. (Reuniting families and locating deported individuals would prove to be a long-term effort — one that, it would appear, remains unfinished into the present.)
On June 26, 2018, the federal judge in the ACLU case, Dana Sabraw, filed an injunction fully halting all family separations and ordered children reunited with their families, citing “irreparable harm.” In other words, the ACLU lawsuit landed a significant blow long before its ultimate resolution, which came only recently. In the filing’s wake, the Biden administration also convened a task force to reunite families. That work has encountered complex logistical issues and has, as a result, been slow and onerous, despite accomplishments like the launch of a (rather surreal) family reunification web portal. As of February this year, nearly 1,000 children had yet to rejoin their parents. More recently, a Justice Department press release about the settlement described reunifications as ongoing.
The settlement deal stipulates that, once its terms are judicially approved and enacted, affected families are to receive limited immigration clearances, and not much else. Both children and adults will be deemed qualified for “lawful entry and three-year, renewable work permits, and certain housing, health and legal services benefits. They would be able to apply for asylum, regardless of previous denials, and wouldn’t be subject to the usual one-year application deadline,” according to the ACLU, quoted in The Los Angeles Times.
Another condition of the settlement is its broadening of benefits: It expanded the suit’s legal class by about 500, from roughly 3,900 children to more than 4,000. After the deal, per an ACLU press release, lead attorney and ACLU Immigrants’ Rights Project Deputy Director Lee Gelernt commented:
While no one would ever claim that this settlement can wholly fix the harm intentionally caused to these little children, it is an essential beginning. This settlement provides significant benefits to thousands of families, and an indispensable component bars the government from reenacting the zero-tolerance policy in the future.
The victories won in the settlement did not come easily. The three years of negotiation saw plenty of back-and-forth, largely thanks to a reluctance to concede on the Biden administration’s part. At one point, negotiations broke down, with the administration reportedly “halting settlement talks” altogether after it came out that the plaintiffs planned to request compensation payments of $450,000 for each affected family.
Evidently, the details of this proposed compensation request were leaked; first reported in The Wall Street Journal, the news set off a disproportionate right-wing backlash. Senate Minority Leader Mitch McConnell said at the time that, “While American families are struggling, the President now wants to make millionaires out of people who crossed the border illegally.” (McConnell and other Senate Republicans went so far as to introduce a bill to block payments, calling it the “Protect American Taxpayer Dollars from Illegal Immigration Act.”) Conservative media was, of course, equally contemptuous.
President Biden seemed to flinch at these jabs. Writing in The New Yorker, journalist Jonathan Blitzer, for one, attributed the president’s “changed mind” on payouts to a “growing skittishness about appearing too lax at the border.”
This would not be out of the ordinary for Biden, who is infamous for his sensitivity to the right, especially on matters of crime and punishment. His attempt to outflank Republicans on crime resulted in the 1994 crime bill that is widely understood to have played a central role in the growth of mass incarceration. After serving as vice president under Barack Obama, the “Deporter-in-Chief,” who oversaw an increasingly harsh immigration regime, Biden, too, has enacted policies that take up the right’s prerogatives.
It’s true that a smaller number of individual cases seeking compensation are still pending in federal courts, so a chance remains that some families may be remunerated. Regardless, to many, the government’s decision to refuse compensation for victims in the primary settlement seemed like an especially cynical turn. At the time, Ann Garcia, an attorney at the National Immigration Project who was part of Biden’s family reunification task force, told The New Yorker, “This is the most plausible form of accountability. If we do not want our government to torture asylum-seeking families again, we should support these settlements.”
ACLU attorney Gelernt appeared equally dismayed that the administration would treat compensation as beyond the pale. As he commented to The New York Times, “It’s shocking that the Biden administration would simply end negotiations without providing an opportunity for a settlement and would choose to defend this horrific practice publicly in court.”
Cruelties Writ Large
Biden’s dubious record in this arena and his administration’s reluctance hint at the wider realities of the issue. “Family separation,” in the public mind, is a narrowly defined Trump-era cruelty, existing only in its “zero-tolerance” formulation. But the literal separation of families, on an industrial scale, is a fundamental function of the punitive and carceral U.S. immigration system.
“It’s obviously good that [the settlement is] addressing the harm that was done under the Trump administration around the serious scale of family separations,” said Silky Shah, executive director of Detention Watch Network, in an interview with Truthout. “But … we know that every single person impacted by the immigration enforcement system is somebody’s sibling or parent or child or loved one. The system as a whole — whether the detention system, prosecutions that are happening at the border, or the many, many deportations that are happening — are separating families. Always.”
Like the plaintiffs at the time, Shah also criticized the administration’s recalcitrance in negotiations for financial reparations. “I think there is concern that the plan to offer some kind of monetary compensation was scrapped. And that is not OK. The reality is that so much harm was done,” she said.
A key drawback of the settlement agreement’s limit on family separations: The time will be tightly circumscribed, with the agreement in place for less than a decade. As The LA Times explained, “The court would have jurisdiction for six years to enforce provisions about Trump-era separations and eight years to enforce provisions about future separations.”
The ACLU stated that, if necessary, it would file another lawsuit after the eight-year window had elapsed. It’s also not entirely comprehensive, and some circumstances would allow for separations to take place. That might mean removing a child from a parent with felony charges. However — because of the Biden administration’s insistence on prosecuting illegal entry and reentry as felonies — in theory, Shah pointed out, multiple charges could result from the parent’s attempts to return to the U.S. to see their family. As she put it, “People who have been here for years and who were deported are trying to get back and are now being put in prison. To me, deprioritizing those prosecutions should be a priority.”
In any case, the impermanence of the limitation agreement leaves family separation “on the table,” said Shah. President Biden has also “actually ended the practice of family detention, which I think is an important victory for the movement,” she added. (It was under Obama that the family detention policy was initiated. It’s little understood by the voting public that, on the whole, Obama’s punitive policies were in many ways comparable to Trump’s.)
Though commendable, Biden’s halt to family detention occurred in practice, not in policy. Shah told Truthout that an executive order would be more meaningful. So would closing U.S. family detention facilities — yet two of the three remain open, requisitioned for holding adults. “If you don’t permanently end family detention right now, some of those facilities could turn back [into repositories for children],” she said.
Moreover, the Biden administration continues separating families by harsh treatment elsewhere, including denying asylum to anyone who entered illegally under Title 42. The continued prosecution of “unlawful” entries and reentries is especially extensive in its harms. “We believe the Biden administration could do more — continue to shut down detention centers, stop detaining people at this scale, stop the deportations,” Shah told Truthout. “It shouldn’t be this model of blanket-long sentences for people who are trying to reenter the country to be with their families because they’ve been separated.”
The concessions won in the ACLU suit are of course preferable to a total absence of any redressing of harms. But the cruelties and injustices of the immigration machine are so sprawling, so incomprehensibly tragic, that we should not be too quick to credit its overseers for reluctantly deigning to offer victims the bare minimum. To do so would be to elide the fact that “family separations,” in all forms, are the ineluctable outcome of the carceral immigration system’s vast operations of detention and deportation.
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