New DOJ Settlement Aims to Reunite Separated Families

Update Monday, Dec. 11, at 7:55 a.m. PT: On Dec. 8, U.S. District Court Judge Dana M. Sabraw orally approved a settlement barring migrant family separations, calling it a remarkable agreement. It will be formally signed and filed on Dec. 11, 2023.

The court said, in part: “It is unfortunate, but we can only bring a certain amount of justice to all of this. And we are getting close. If we can find every child and provide that reunification with their parent, we have accomplished a great deal. But, of course, that doesn’t address the underlying trauma and the wrong and the years that have gone by. We have discussed cases where families have been separated, and four or five years later they are being reunified. And what does that look like? And the parents and children, the child doesn’t know their parent. The child has often grown comfortable with an adopted family or a sponsor, and then the parent wants their child back.

It is a really difficult circumstance. And, of course, it is all caused by a practice that was unconstitutional. But this settlement agreement comes, I am convinced, the closest that we can possibly do under the circumstances to restore justice.

Immigrants rally against former President Donald Trump’s immigration policy, held next to the Trump Building on Wall Street in New York City on Jan. 19, 2018. (Mohammed Elshamy / Anadolu Agency / Getty Images)

Locating and reuniting families after Trump’s family separation policies is ongoing—five to six years after some families were first separated. Biden and Congress must act.

Five years after the Trump administration separated nearly 5,000 children and families in an attempt to deter migration, the Department of Justice has agreed to settle a class-action lawsuit, Ms. L v. ICE , brought on behalf of those families by the ACLU. What began as a lawsuit representing one mother and one child quickly grew, as initial discovery in the case revealed that the scope of separations was far greater, and started far earlier, than May and June 2018, when the bulk of the separations took place. Most shocking of all, the Trump administration had no system for reuniting—or even tracking—those separated.

The lawsuit sought both to end the practice of family separation and to vindicate the rights of families who had been physically separated from each other. The court quickly enjoined the practice and the Trump administration relented, under pressure from both political parties to end the practice, encouraging family detention instead. Soon thereafter some parents and children were reunited, but thousands remained apart; in many cases, parents were deported without their children and had no idea where their children had been sent. To this day, no one can be certain how many families remain separated. 

According to my colleague, Christie Turner-Herbas, senior director of special programs at Kids in Need of Defense (KIND), the early victories in stopping deliberate family separation were just the beginning of a long fight to undo the damage that had already been done.

“Everyone remembers the agony of family separation in 2018,” she said, “but after that summer, we were only beginning to understand the scope of the crisis, and how many people it impacted.”

In fact, an internal audit found that beyond the sheer cruelty of the policy itself, there had been no real planning or coordination for its implementation—resulting in even greater harm to children who had been ripped away from their caregivers. The government lacked even basic systems to track which child belonged to which parent, despite warnings from some officials who had flagged serious concerns following a “pilot” phase of the policy in 2017. 

In response, reuniting families became a top priority for the court. KIND has participated in a steering committee advising the court and the ACLU on locating and reuniting families, a task that is ongoing, even five to six years after some families were first separated.

Everyone remembers the agony of family separation in 2018, but after that summer, we were only beginning to understand the scope of the crisis, and how many people it impacted.

Christie Turner-Herbas, Kids in Need of Defense (KIND)

Government efforts to identify and reunite families became more focused after President Biden’s inauguration. One of his first executive orders created a Family Reunification Task Force that has been instrumental in prioritizing reunification efforts, stabilizing formerly separated families as they attempt to rebuild their lives and reframing the government’s approach to preventing future separations.

Those priorities are reflected in the proposed settlement. Pending formal approval in federal court, the settlement will permit families to remain in or return to the United States to pursue asylum and will offer a suite of services, including housing and mental health assistance to help them get back on their feet and to heal from the trauma of their separation. The settlement also includes important terms for protecting against future family separation and outlines procedures for tracking children in rare cases where separation is needed, which will remain in effect for eight years.

Kayleen Hartman, KIND family separation team managing director, oversees a staff working directly with families and children, supporting them in applying for asylum and humanitarian parole, as well as submission of claims seeking redress for the incredible harm done to children and their families. KIND currently has about 500 open cases, while its international program has also provided reunification assistance and tracking to over 2,500 children and families.

Hartman welcomes the proposed settlement but said the real work begins now, as lives have been on hold and cases have been delayed for years. She worries about the lasting impact of separation on children.

“The science is so clear that even a short separation can have a dramatic effect on a young child’s development. Some of our families have been separated for years—try to imagine the lasting pain and anxiety this causes. We have families whose children still wake up screaming at night, wet the bed, hide behind their parents when they see a police officer. There is really no remedy that can give them back what they lost, but the government must be held accountable.”

Turner-Herbas agreed, noting that litigation is one tool for addressing an extremely damaging policy decision, but it cannot resolve all the gaps of an imperfect system. “All of the consequences of such a horrific policy came, in part, because we don’t have an immigration system that actually centers the welfare of the child in decision-making.”

Given the countless stories of suffering caused by family separation, Hartman is mystified by the failure of Congress to decisively end immigration enforcement practices that harm children. “I think the American public, across the spectrum, understands that children shouldn’t be pawns in immigration policy.”

In the absence of more child-protective laws, the settlement offers some barriers against any future administration inflicting harm upon children and families to deter migration.

The government has acknowledged that keeping families intact is integral to protecting the rights of parents and children while in immigration proceedings. This may seem like an obvious point, but the enforcement of U.S. immigration law frequently ignores the impact of detention, removal, and criminal prosecutions on an individual’s family. Lessons learned from the horrors of family separation may have begun to change that dynamic.

The science is so clear that even a short separation can have a dramatic effect on a young child’s development.

Kayleen Hartman, KIND

More can be done to guard against family separation, including both administrative and congressional action to refocus our immigration system on the needs of children.

In the short-term, however, assuming the settlement is approved by the court, the government should work to implement it swiftly and ensure that the resources necessary to continue reuniting families, providing services to them, and providing legal counsel are available. Congress can fully fund the work of the Task Force on Family Separation and explore long-term solutions that recognize the importance of family unity.

The proposed settlement takes seriously the obligation of the government to protect families. It is a welcome development but is only the first step towards a more secure and lasting commitment by the country to keep families caught up in the immigration system safe.

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Mary Giovagnoli is an immigration attorney and policy expert who has worked for over 25 years in both the federal government and nonprofit advocacy to improve the immigration system. She is a former executive director of the Refugee Council USA. She served as the DHS deputy assistant secretary for immigration policy from 2015 to 2017.