Migrants walks along the border fence before surrendering to U.S. Border Patrol agents in Yuma, Ariz. (Eric Thayer/Bloomberg)
The Biden administration on Monday agreed to a court settlement that would bar U.S. authorities from referring migrant parents traveling with children for criminal prosecution for illegally entering the United States, a largely condemned practice used by the Trump administration.
If approved by a judge, this provision in the proposed settlement would remain in effect for eight years, preventing an administration during that time from restoring a “zero tolerance” prosecution policy. That Trump policy forced the separation of thousands of parents and children at the southern border in 2018.
The proposed settlement, filed Monday in U.S. District Court in San Diego, would wrap up a class-action lawsuit that compelled the Trump administration to reunite thousands of family members forced apart during his term. The settlement also would grant temporary benefits to separated families such as housing aid, work permits, health care and a fresh start for their asylum claims.
“The fact that someone enters the United States unlawfully is not a basis for future separations,” a senior Department of Justice official said, speaking on condition of anonymity before the final settlement was filed. “It’s only if somebody has committed a serious felony offense that future separations will be permitted. And a mere immigration offense doesn’t qualify.”
U.S. District Judge Dana Sabraw, a Republican appointee who declared the separations unlawful in 2018 and has overseen family reunifications, would determine whether to approve the settlement after a hearing, possibly in December.
The number of separated families has varied over the years because Trump officials separated parents and children without a plan to reunite them, and some were deported. The Biden administration created a task force with the goal of reuniting any families who remained apart, and said they found at least 700 of them.
In all, officials said Monday, more than 4,000 children were separated from parents, including 290 U.S. citizen children. Government officials had earlier said as many as 5,500 children were taken from their parents during President Donald Trump’s term, which ended in 2021.
Trump’s zero-tolerance policy has been widely viewed as a fiasco. Federal agents said they separated families to prosecute parents for the misdemeanor crime of crossing the border illegally, but many were never charged. Parents were sent to immigration detention facilities and children as young as 6 months old were placed in shelters. Some were separated for months, some for years.
The zero-tolerance policy unfolded in a chaotic few weeks from May to June 2018, but later investigations determined that families were separated throughout Trump’s term. The proposed settlement filed Monday would cover his entire tenure as president.
The San Diego lawsuit is separate from about 40 other suits and hundreds of administrative claims that some families have filed against the federal government seeking compensation for their ordeals. Negotiations that would have paid parents and children $450,000 each to settle those cases imploded in 2021 after the amount was leaked to the media, and critics said families should not be paid for breaking the law.
President Joe Biden abhorred the family separations and upon taking office created a special task force to reunite those who were still separated, but he considered that amount excessive, the White House later said.
The Justice Department has agreed to settle some of those cases in recent weeks, including a federal lawsuit in Florida that paid $315,000 in total to a father and son from Honduras who were separated for two months. The amounts for the other lawsuits have not been disclosed.
Under the terms of the San Diego settlement, migrant families would be eligible for three-year work permits, six months of government-paid housing assistance, plus medical care and counseling. Their deportation orders would be wiped clean, and they would have a new chance to apply for humanitarian protection via an asylum officer instead of in the more adversarial U.S. immigration courts. The government will provide legal aid through nonprofits.
Migrant families who were deported or returned home voluntarily would be allowed to travel back into the United States and would be allowed to ask if they can bring other household members with them, according to the proposed settlement.
Under the settlement some families may still be separated in the future, in extreme cases, such as if the parent posed a danger to the child or national security, has a medical emergency or an outstanding criminal warrant. But the settlement would set rules for how those separations should occur, ensuring the children cannot get lost in the system and that migrants’ lawyers are notified about the separations so they may challenge the decision.
“Although nothing can make these families whole again or erase from history the harm our government intentionally inflicted on little children, even babies, the settlement is a critical step forward,” said Lee Gelernt of the American Civil Liberties Union, the lead counsel in the 2018 lawsuit, in a statement.
“The settlement looks both backward and forward, providing benefits to families separated under the Trump administration as well as safeguards barring a future administration from reenacting this barbaric policy,” Gelernt said.
Attorney General Merrick B. Garland called the family separations under Trump “shameful.”
“This agreement will facilitate the reunification of separated families and provide them with critical services to aid in their recovery,” Garland said in a statement.
Advocates for immigrants expect the proposal to cover approximately 3,900 families involved in the lawsuit. Officials were unable to determine the precise number because the government separated the families without a tracking system in place to reunite them.
The proposed settlement opens the lawsuit to include families excluded from the reunification effort for other reasons, such as because they were legal guardians, not parents, or suspected of crimes.
The Trump administration had argued the zero-tolerance policy was necessary because parents were crossing the border illegally with children in hopes of winning quick release into the United States. Courts have generally limited the time the government may detain minors to 20 days, so most families are released to await an asylum hearing in the backlogged immigration courts, which can take years.
Trump, the front-runner in polls for the Republican nomination for president in 2024 despite facing multiple criminal charges, has said he would not rule out restoring his zero-tolerance policy for families, if reelected.
“When you say to a family, that if you come, we’re going to break you up, they don’t come. And we can’t afford to have any more,” Trump told journalist Kaitlan Collins at a CNN town hall in May.
Nick Miroff contributed to this report.
