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Biden Walked Away From Compensating Separated Migrant Families. But These Parents Aren't Giving Up

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night-time shot of woman holding her small child, both with concerned faces, surrounded by silhouettes of border patrol agents
A Honduran asylum seeker holds her 2-year-old child as U.S. Border Patrol agents review their papers near the U.S.-Mexico border on June 12, 2018, in Texas. They were sent to a processing center for possible separation as part of the Trump administration's 'zero tolerance' policy toward undocumented immigrants. (John Moore/Getty Images)

Days before the final 2020 presidential debate between candidate Joe Biden and then-President Donald Trump, news broke that hundreds of migrant children remained separated from their parents, more than two years after the Trump administration’s “zero tolerance” policy was halted.

At the debate in Nashville, Biden expressed his outrage.

“Their kids were ripped from their arms and separated,” he said. “It’s criminal.”

The Trump administration separated more than 5,500 children from their parents.

Reunifying the families — and undoing the harm of the separations — became a key part of Biden’s immigration platform. He ran an ad on it, just days before voters went to the polls.

So it was a surprise in December of 2021 when the administration dropped out of negotiations with the American Civil Liberties Union to compensate families for the harm they suffered.

Though administration officials have not explained their decision, and the Justice Department declined to comment for this story, some advocates believe money and politics are to blame.

And with the breakdown of the talks, the Biden administration now faces a series of individual lawsuits as many of the affected families pursue compensation through the federal courts.

“Everyone has gone back to court and those lawsuits are spread out throughout the country,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project. “I think they were on the right track to try and settle these globally. And unfortunately, politics got in the way.”

Supposedly leaked compensation amount spawns backlash

Nearly four years ago, the ACLU sued the federal government on behalf of newly arrived immigrant parents whose children had been taken from them by the Trump administration. This class action lawsuit, Ms. L v. ICE, led to the reunification of thousands of separated families, but the process has dragged on for years. The Trump administration was compelled by a court injunction to assist, but much of the work of locating the parents and children has been done by a team led by the ACLU.

When Biden was elected, it seemed like the government and the ACLU would finally be aligned in aiding the families. Shortly after taking office, the president signed an executive order establishing the Family Reunification Task Force. And a few months later, the ACLU and the government announced they’d be pursuing a settlement in the case.

The Effort to Reunify Families

Then, according to advocates, a leaked number from the confidential negotiations caused the talks to break down: $450,000. In late October 2021, The Wall Street Journal reported that the Biden administration was considering paying each person harmed by family separation something close to that amount in monetary damages.

But according to ACLU attorney Gelernt, while they were discussing compensation for families, the actual dollar amount wasn’t firm.

“There was no offer on the table,” said Gelernt, who’s one of the attorneys on the Ms. L case. “There was no specific amount on the table. And we were prepared to continue negotiating.”

But it was too late. Once that number was out in the world, the backlash was swift. Online, and on right-wing media channels, politicians and pundits blasted the plan, calling government payouts to unauthorized immigrants “outrageous.”

Then, in December 2021, the administration backed out of talks to compensate families altogether.

'You're harmed, you sue'

At the heart of the negotiations was an attempt to settle a series of lawsuits filed under the Federal Tort Claims Act by families who were separated. The FTCA allows individuals to sue the federal government if they were harmed by government representatives acting in their official capacity.

With the collapse of the talks, attorneys say those families will now take their individual cases to federal judges across the country.

They add that the cases of families who were separated by border agents clearly meet the FTCA standard. A paper, published last year in the journal Pediatrics, found that the U.S. treatment of migrant children was consistent with the United Nations' definition of torture.

“The personal injury … in some cases it was physical harm, it's emotional distress because we ripped their children from them,” said Carol Anne Donohoe, managing attorney for the Family Reunification Project at Al Otro Lado, a California-based immigrant rights organization. “There’s nothing that will ever make that OK.”

Whether or not money can undo the harm caused by the separations, Donohoe says, the families are entitled to pursue the legal remedy available under the U.S. justice system.

“They have every right to file a claim like you or I would,” she said. “You know, you're harmed, you sue. That's the American way.”

At the same time, Donohoe points out that the migrant parents who have been reunited with their kids in the U.S. may have a real need for those funds right now. Many are pursuing asylum claims, which can take years to resolve.

“Families that come here, they're allowed to apply for a work permit — which they get within maybe two months — but if they need housing, if they need food … if they have any medical issues, there is nothing in place for these families,” Donohoe said.

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Three people, one room

One of these families is headed by a widow named Sandra, who came to the U.S. with her two children — then 10 and 11 years old — in 2017. She said she fled Guatemala because she didn’t trust the police to protect her from a violent neighbor.

Sandra presented herself at a port of entry in Arizona, seeking asylum. After she and her children spent three days in immigration custody, Sandra said officials told her the facility could not support her children, and they would be taken away from her.

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Sandra remained in immigration detention for three months before being deported without her children and didn’t see them for three years until she was allowed to return last year. She’s filed a tort claim against the federal government for the trauma caused by the separation. Sandra didn’t want to use her last name out of fear that talking to the press might harm her case.

Sandra and her kids — now 14 and 15 — are currently sharing a room in her brother-in-law’s house.

"In the place where we're living, we just have one little room for the three of us, me and my kids," she said, speaking through a translator. "Sometimes it's really hard to sleep because we're all in this one little room."

Sandra said she’s having a hard time supporting her family. She’s been looking for work but most jobs she’s found would require her to work swing shifts, and that would prevent her from spending time with her kids. Without a steady job, she cannot afford a car or an apartment of her own.

Sandra says her kids often discuss what it’ll be like when they’re in a bigger place. She tells them to take advantage of their education, so when they’re adults they won’t have to struggle to support themselves.

"I tell them, 'Study, my children, because you're not meant to work the way I'm working. Just look at how I come home — exhausted,'" she said.

While she’s juggling looking for work and reconnecting with her kids, Sandra is also preparing, with the help of attorneys, to go before a judge with her tort claim.

The politics of it all

With the negotiated settlement off the table and the individual tort claims like Sandra’s moving forward, the Biden Justice Department could soon find itself having to defend the Trump administration’s family separation policy in court. And if the government loses, it could end up paying monetary damages — potentially greater than $450,000 — to the separated families.

That has led some advocates to conclude that politics — not fiscal pragmatism — may have motivated the administration to abandon the settlement talks.

Donohoe says she believes Biden was concerned about the potential political damage from providing payments.

“And now he doesn't apparently care as much about the political damage of what it's going to look like for his DOJ [to be] defending the same policy in court,” she said.

UC Berkeley political scientist Lisa García Bedolla says it’s possible that White House officials are trying to control the narrative ahead of this year’s midterm Congressional elections, where the president’s party traditionally suffers losses.

“What the White House in a midterm wants is they want the conversation to be one where they think that they can be portrayed in a positive light,” she said.

With that in mind, Bedolla said, the administration may find it easier to deal with one tort claim at a time, rather than settling them all at once.

“It’s a trickle instead of a flood, right?” she said. “You're dealing with each individual at a time, based on their individual circumstances.”

But the ACLU’s Gelernt disagrees that compensating families will hurt the Democrats politically.

“If you recall in 2018, a good chunk of the American public — not just Democrats and liberals [but] conservatives and Republicans — were outraged about the Trump administration taking little babies away from their parents,” he said. “So I think the Biden administration is wrong to think the politics will be against them for doing what's right here. But regardless, they need to do what's right.”

KQED's Carlos Cabrera-Lomelí contributed to this story.

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