Families Separated at the Border Are Protected by a 2023 Settlement. Will Trump Honor It?

O

n the first day of his second term, President Trump sat behind neat stacks of executive orders in the Oval Office and started signing.

First, he pardoned the more than 1,500 “hostages,” as he called them, who’d been convicted or charged in connection with the Jan. 6 storming of the Capitol. He went on to sign a slew of immigration-related orders, including one titled “Protecting The American People Against Invasion,” which called for a dramatic surge in border enforcement and, among other things, the dissolution of the Family Reunification Task Force.

The task force was born out of a federal settlement agreement, reached in 2023 between the Biden administration and the American Civil Liberties Union after a yearslong lawsuit, that required the government to reunite thousands of families who were forcibly separated during Trump’s first term. The separations were part of the Trump administration’s “Zero Tolerance” immigration policy, a crackdown on illegal border crossings in 2018. As reports emerged of weeping children being taken from their parents’ arms and languishing behind chain-link fences, the policy drew global condemnation for its inhumane treatment of people seeking asylum.

Asked by a reporter if he expected his new immigration orders to be challenged in the courts, Trump responded that he didn’t think they could be. “They’re very straight up,” he said.

Immigration and civil rights attorneys who work with separated families disagree, saying the sweeping changes will test the strength of the federal settlement agreement, which also banned most separations for eight years.

Trump’s broad focus on total enforcement of all immigration laws, without specifying who exactly the orders apply to, has the ACLU and immigrant advocates on alert for anything that resembles a new family separation policy or undermines the settlement. And they’re spring-loaded to fight.

“We will be monitoring very closely to see whether the Trump administration faithfully applies the settlement,” said Lee Gelernt, the ACLU attorney who led the lawsuit. “And if they don’t, we’ll be back in court immediately.”

Nearly seven years after Zero Tolerance, hundreds of children remain apart from their families. For the more than 3,000 families who have already been reunited and for thousands more making their way toward the border today, even a relatively minor or temporary policy change could jeopardize their claims for asylum.

“Basically, [the administration is] trying to shut down the border again to all asylum seekers,” said Laura Peña, director of the South Texas Pro Bono Asylum Representation Project (ProBAR). “And that is going to affect children. It is going to affect families.”

Here’s what to know about family separation under President Trump, then and now.

A ‘shameful chapter’

To understand how so many families ended up separated, you have to go back to pre-Trump America. Unauthorized entry to the U.S. is illegal, but for decades, adults who crossed the border illegally with their children, many of whom were fleeing violence and persecution in their home countries, were generally not prosecuted for that infraction alone. Instead, families would either be allowed to stay in the U.S. pending immigration rulings or be deported together. But things changed after Trump took office in 2017.

That spring, the U.S. Border Patrol in El Paso, Texas, started toying with a new way to deter people from crossing the border illegally: prosecute every adult, including those crossing with kids. In April of 2018, then-Attorney General Jeff Sessions took the policy border-wide, dubbing it “Zero Tolerance.”

“Having children does not give you immunity from arrest and prosecution,” Sessions later said of the policy.

Now, when families were apprehended at the border, federal agents began sending children and their parents or guardians to separate holding facilities. A 14-year-old boy and his older sister, who had raised him, crossed the border into Texas, where they surrendered to the Border Patrol. “On the third day, they took me out of my cage and said I would be separated from my sister, but they didn’t tell me where I was going,” the boy later told a visitor from Human Rights Watch. “I don’t understand why they separated us. They didn’t give me a chance to say goodbye.”

Three months after Zero Tolerance was formally implemented, the Trump administration began touting a dip in illegal border crossings but did not mention it was a small dip, and typical for that time of year. Meanwhile, border-area prosecutors complained that their dockets were overwhelmed by all the misdemeanor immigration cases and that people accused of serious crimes were slipping through the cracks.

But there was an even more problematic consequence of Zero Tolerance: the massive number of children who were suddenly in the care of the federal government. Children went to holding pens — many of them tents erected for the purpose — while they waited to be placed in shelters or foster homes. Over 40% of those detention centers were located in California, Arizona and Texas. Humanitarian workers reported that federal authorities were not prepared to care for them, so older children took care of younger ones and illnesses went untreated.

Then, the government lost track of which children belonged to which parents.

Caseworkers and therapists asked traumatized kids who they came with, while immigration lawyers tried to calm hysterical parents who had no idea where authorities had taken their children. Many kids panicked, crying endlessly, or went catatonic. In one case, after Border Patrol agents forcibly removed a Honduran father’s 3-year-old son from his hands, the man became so agitated he had to be moved to a Texas jail, where he strangled himself to death.

The ACLU filed its class-action lawsuit on behalf of these families, Ms. L v. ICE, in February of 2018.

In June of that year, under growing public pressure, Trump ordered an end to family separations without revoking Zero Tolerance. Separations slowed but didn’t stop. By the time Trump left office, well over 5,000 children had been taken from their families. While many had been reunited by then, some parents had been deported, leaving their children in the United States with other family members or in foster care.

In December of 2023, the Biden administration settled the ACLU’s lawsuit by agreeing to aid in the reunification of separated families and to provide a pathway for their claims to asylum, including access to work permits, various forms of support and a three-year legal status called humanitarian parole.

Before approving the settlement, federal judge Dana Sabraw, of the U.S. District Court for the Southern District of California in San Diego, said family separation “represents one of the most shameful chapters in the history of our country.”

Out of the frying pan

The ACLU’s Gelernt said there could be as many as 1,000 children still separated from their parents or guardians. Those families have been identified using the sparse records kept by the Trump administration during Zero Tolerance, which often yield little more than a name. The government and a coalition of nonprofit advocacy organizations have not been able to find them.

Lesly Tayes, an attorney in Guatemala, has been working to track down separated parents by combing through Guatemalan government records for information on their possible whereabouts. When she finds them, often in rural indigenous communities, she helps them travel to the Guatemalan capital to formally regain custody of their kids. But some parents Tayes worked with had never been to a city in their lives. “I had to support them with transportation or hotels,” she said. “Many of them didn’t even speak Spanish.”

Parents who want to join their children in the U.S. and seek asylum often need help removing bureaucratic obstacles first; a sibling may need a passport for the journey or a legal guardian proof of their relationship with the child from whom they were separated.

Even after families are together again in the United States, their struggle is hardly over.

Alfonso Mercado, a psychologist in Texas’ Rio Grande Valley, has spent the last several years conducting clinical research and consulting as an expert witness in family separation cases at the border. “There was trauma everywhere,” he said. “These children were experiencing difficulties integrating into an environment that abused them,” by which he meant the United States.

Joanna Dreby, a sociologist at the State University of New York at Albany who has studied the impact of immigration policies on families for the past two decades, said that even after separated families are reunited, parents and children can struggle to repair their relationships. In some cases, children who were separated when very young are reunited with parents they don’t remember.

“Kids might be like, ‘Why did they even go? Why did they do that? It led to this mess,’” Dreby said.

The Ms. L settlement agreement promises that, once reunified in the United States, families will be supported with mental health and other medical care, housing and legal assistance and the ability to apply for work permits. But advocates say these resources have fallen short of what’s needed.

“The increase in mental health services for this population is still very scarce and very limited,” Mercado said. “There’s no continuity of care.”

And in the U.S., families face an avalanche of urgent problems. Tayes said parents and guardians often wait months to get authorization to work. “Some of them were struggling with food, housing. It wasn’t easy for them,” she said.

Hanging over these families is the specter of another deportation. According to the ACLU, the 2023 court settlement should supersede any immigration-related orders from the Trump administration. But the agreement doesn’t guarantee asylum, and the application process can be difficult to navigate, even with the help of an attorney. Non-governmental organizations serving Ms L. class members say they have struggled to provide pro bono legal help, especially after family separations were no longer a front-page issue and funding sources dried up.

The question of legal status can be complicated by the fact that members of separated families are often pursuing separate immigration cases. Children’s asylum claims, for example, were often filed after the initial separation, when the government designated them as “unaccompanied.”

“If [parents] lose their asylum cases,” Gelernt said, “then they’re going to be in real trouble of being removed and/or re-separated from their children.”

Separations continue

In settling Ms. L, the federal government agreed to halt further family separation at the border through 2031, though there are exceptions that have allowed hundreds more separations since the settlement went into effect. For example, parents and children crossing the border illegally are still detained separately when the adults are deemed a national security or public safety risk, a danger to their children or if they’ve been charged with a felony other than crossing the border without authorization. However, the wording of the exceptions allows for broad interpretation. “You can basically run an 18-wheeler through them,” said one immigration law expert with knowledge of family separations.

Peña, whose organization ProBAR is a project of the American Bar Association, said cases in which border crossers are flagged for national security reasons are hard for attorneys like her to challenge because they often involve classified information. “The government can cite national security risk without revealing what information exactly is underlying that determination,” she said. “So it’s hard to determine the source of the risk and advocate for family reunification.”

If a parent is flagged under one of the exceptions, they often go into federal immigration custody while their child goes to a shelter operated by the Office of Refugee Resettlement. Many parents are later released from custody if they successfully fight their case, but because the government has become legally responsible for their children’s welfare, strict guidelines kick in for releasing them into the care of someone else — even their parents. As a result, it can take much longer to reunite a family than to separate them.

The settlement agreement mandates that families who are separated be given written notice of the reason. Agencies have to facilitate communication between parents and children, and if parents are being deported, they must be given the option to be deported with or without their children. But Peña said this doesn’t always happen: “There are certain rights that the parents have under this settlement agreement that they’re not going to know about if they don’t have a lawyer who is also educated on these.”

Gelernt said the ACLU is relying on organizations like Peña’s to report apparent patterns in immigration enforcement. Cases of parents being flagged under the exceptions could suddenly increase, for example, creating what, in effect, becomes a new separation policy. If that happens, Gelernt said, “We’d go back to court and say, it can’t be that four out of five parents all of a sudden are abusing their children, or four out of every five parents are a public safety threat to the United States.”

He thinks the Trump administration knows better than to try to renegotiate or oppose the settlement agreement or to reestablish a formal separation policy. “I’d be surprised if they do forcible separation again, given the outcry against it,” he said. “But I’ve been wrong before about where they’re willing to go.”

The next chapter

Attorneys and immigrants’ rights advocates say it’s too early to tell how Trump’s spiking the task force, which has been a collaboration between the departments of Homeland Security, Health and Human Services, State, and Justice, will impact reunification efforts. The group’s main purpose in recent months has been to determine whether separated families were eligible for relief under the settlement agreement and to smooth the way for reunification.

The Ms. L settlement agreement remains in effect, Gelernt said, so even without a task force, the Trump administration will have to do something to meet its requirements.

The White House could not immediately be reached for comment as to whether the Trump administration intends to honor the court-ordered settlement. The Department of Homeland Security (DHS), which houses several federal agencies involved in immigration issues, did not respond to the same question by publication time.

NGOs working with separated families said that, so far, the government appears to be meeting its obligations under the settlement.

Earlier this month, the task force’s website was updated to reflect the new secretaries of Homeland Security and the State Department, Kristi Noem and Marco Rubio, and to remove references to the Biden-Harris administration.

The settlement agreement stipulates that the federal website where separated families can register for relief, Together.gov, has to stay up and that the registration process has to remain open until December 2026. Gelernt worries that potential class members may be afraid to come forward in the current enforcement climate but urges them to register: “Otherwise, they are very vulnerable.”

Even if the dismantling of the task force is only symbolic, Gelernt sees it as a tactic to erase Zero Tolerance from the collective consciousness. “That they immediately eliminated the task force highlights the Trump administration’s failure to admit there was such a policy, much less acknowledge the brutal abuse it inflicted on little children,” he said.

And even without a formal policy of family separation, sweeping changes to the bureaucracy — especially when they’re rushed — can get messy.

Peña worries that, as Trump’s orders take effect, there may not be clear guidance for immigration authorities on the ground. “Law enforcement agencies could really be looking at anybody who’s not a citizen and trying to figure out, ‘Okay, are they a priority or not?’” she said. “Because of the complexity, a lot of people who should not be on this priority list are going to get caught up in it. And that’s where we’re going to see mass family separations, potentially not just at the border, but across the nation.”

The ACLU believes they should be notified if class members are picked up for removal, but Gelernt acknowledges the government may hold a different view. DHS did not respond to questions about how it will handle those encounters.

Erika Pinheiro, executive director of Al Otro Lado, an organization that supports migrants on both the U.S. and Mexican sides of the border, said her office has been fielding calls from separated families asking how the new executive orders could affect them. “Unfortunately, we can tell them what we know, which isn’t much at this point.”

Dreby, the sociologist, has observed that the mere threat of deportation and separation weighs heavily on immigrants, even those with legal status. “The ongoing anxiety is a really big deal,” she said, adding that cultural shifts can matter, as well as changes in policy. “When you have moments of really strong anti-immigrant rhetoric, the anxiety bubbles to the surface.”

Mercado put it more succinctly: “As a psychologist, I am very concerned about what’s to come.”

In the meantime, Gelernt and other legal advocates are confident that the Ms. L settlement agreement, and their fight against Zero Tolerance during Trump’s first term, have prepared them for potential legal battles. “By the time we understood that it was systematic, it had already been happening for months and months,” Gelernt said of the original wave of family separations. “This time, I think everyone’s attuned to watching for it.”

February 13, 8:50 p.m. This story has been updated to reflect that “Protecting The American People Against Invasion” was not Trump’s second executive order; it was signed later in the same sitting. 

February 13, 5:30 p.m.: This story was updated to clarify that the Ms. L settlement agreement may not require the government to alert the ACLU when it detains a member of the settlement class.