Nearly five years after the controversial policy that forcibly separated thousands of migrant families at the U.S.-Mexico border, the Biden administration has reached a settlement to provide those affected with social services and legal immigration benefits.
The settlement agreement was filed jointly on Monday by the Justice Department and American Civil Liberties Union (ACLU) in an effort to settle a 2018 class-action lawsuit over the separations under former President Donald Trump.
U.S. District Judge Dana Sabraw, who originally ruled the separations unlawful in 2018, is expected to approve the six-year settlement.
“The separation of families at our southern border was a betrayal of our nation’s values,” said Associate Attorney General Vanita Gupta. “By providing services to these families and implementing policies to prevent future separations, today’s agreement addresses the impacts of those separations and helps ensure that nothing like this happens again.”
Settlement Offers Special Asylum Process, Social Services
If approved, the settlement would allow migrant parents and children separated by border officials under Trump’s “zero tolerance” policy to undergo a special process to request asylum in the U.S. It would also provide them access to housing assistance, medical and mental health services, and legal counsel.
However, despite calls from advocates, the agreement does not include monetary compensation for families – a proposition scrapped after opposition from Republican lawmakers. The Biden administration has argued in court that separated families do not qualify for such reparations.
“The fact that someone enters the United States unlawfully is not a basis for future separation,” said a senior Justice Department official about the settlement terms. “It’s only if somebody has committed a serious felony offense that future separations will be permitted.”
Lee Gelernt, the lead ACLU attorney in the family separation lawsuit, said that while the settlement “cannot make these families whole again,” it provides “an important start” in allowing them to lawfully remain in the country.
Around 4,000 children were separated from their parents under Trump’s policy, which aimed to criminally prosecute all adults crossing the border illegally. Trump ended the systematic separations in June 2018 amid public backlash.
Special Asylum Process Aims to Aid Traumatized Families
The proposed settlement would allow families separated under Trump to have their asylum cases heard by U.S. Citizenship and Immigration Services (USCIS) instead of in immigration court.
USCIS officers would be instructed to factor in the trauma of separation when adjudicating these asylum claims. Asylum seekers must prove persecution in their home country based on race, religion, nationality, political opinion or membership in a social group. If granted asylum, they receive permanent U.S. residency.
The agreement also ensures separated families access to housing assistance through nonprofit organizations contracted by the government. Parents and children would additionally receive mental health services to deal with trauma related to their separations.
“The establishment of a fast-track asylum adjudication and support services process for the victims of family separation is an encouraging development,” said Krish O’Mara Vignarajah, president of Lutheran Immigration and Refugee Service, in a statement. “The lasting effects of trauma do not simply fade with time.”
Limits Future Separations to Rare Circumstances
Additionally, the proposed settlement significantly restricts the government’s ability to separate migrant parents from their children in the future.
Parents’ illegal entry into the U.S. can no longer be used as a justification for taking away their kids. Separations would only be allowed in rare cases, such as if the parent is abusive or has a serious criminal record.
“The fact that someone enters the United States unlawfully is not a basis for future separation,” a Justice Department official reiterated about the agreement.
Trump administration officials had argued that separating families for illegal entry would act as a deterrent at the southwest border. But immigration advocates countered the separations were inhumane and caused lasting trauma.
“This agreement is an important step toward rectifying the harm caused by the Trump administration’s barbaric family separation practice,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “We will continue working to provide relief to all of the more than 5,000 families who were separated.”
Tracking Down Those Still Separated
Part of the settlement requires the Biden administration to continue efforts to locate and reunite families who remain separated nearly five years later.
A special interagency task force has reunited about 750 families since Biden took office in January 2021. That has allowed deported parents to return to the U.S. to reunite with their children.
These parents are granted temporary deportation relief and work permits for three years through the humanitarian parole program. Settlement terms commit the government to extending these protections.
But the ACLU estimates between 500 to 1,500 separated children still have not been reunited with parents, largely due to shoddy record-keeping during the separations. The organization has struggled to reach all affected families, especially those with parents deported to remote areas of Central America.
“We will continue working to find all of the families, ensure they obtain the relief they are legally entitled to, and to hold the government accountable,” said Gelernt of the ACLU.
The settlement represents a major step by the Biden administration to provide redress to families affected by one of the most controversial immigration policies under Trump. But the full scope of the separations and their aftermath is still coming into focus, even half a decade later.
