The Biden administration this week announced a historic settlement in an ongoing class action lawsuit over the Trump administration’s “zero tolerance” policy. This was the brutal, chaotic, and traumatizing order, concocted by then-Attorney General Jefferson Beauregard Sessions III and noted white nationalist Stephen Miller, that resulted in the forcible separation of thousands of migrant children and became one of the darkest chapters in modern U.S. history.
In a statement, Department of Homeland Security (DHS) Sec. Alejandro Mayorkas said the proposed agreement “reflects the Biden-Harris administration’s unwavering commitment to reunify families who suffered because of the prior administration’s cruel and inhumane policy, and our steadfast adherence to our nation’s most dearly held values.”
Under the proposed settlement stemming from Ms. L v. ICE, a lawsuit initially launched by the American Civil Liberties Union (ACLU) in 2018, the federal government is barred from enacting policies that again separate children from their parents, except in limited circumstances, for a period of eight years. The federal government must also continue its efforts to reunite the hundreds of children who remain separated from their families, “fund their reunification in the U.S., and provide a pathway for them to seek asylum here,” the ACLU said.
The proposed settlement will allow families to enter the U.S. through the humanitarian parole process (which allows migrants to live here for a certain period of time) and will create a streamlined process for families to apply for asylum. The federal government has also agreed to connect affected individuals with services including behavioral health care, limited legal assistance, and work authorization. Up to 5,000 children and parents are covered under the settlement, which still requires a sign-off by Judge Dana Sabraw.
Sabraw issued the June 2018 ruling that ordered the Trump administration to reunite children it had ripped from the arms of parents. But officials would callously miss the first deadline issued by the court that prioritized the reunification of the youngest children, aged five and under. The public would later learn that reunifications were delayed – and for many others, have not yet happened at all – because of sloppy recordkeeping, the rapid deportation of parents, and general indifference to the suffering of some of the most vulnerable among us.
“The ACLU has settled hundreds of lawsuits in our 103-year history, but none more important than this one,” ACLU Executive Director Anthony D. Romero said. “To America’s enduring shame, we tore children from the arms of their families to enact a xenophobic agenda. This settlement closes the darkest chapter of the Trump administration, but as welcomed as it is, the damage inflicted on these families will forever be tragic and irreversible.”
Kids In Need Of Defense (KIND), an organization that has legally represented separated children and helped return unjustly deported parents to the U.S, commended the proposed settlement.
“KIND has worked to reunify families and assist separated children and parents from the beginning of the monstrous policy and is glad that an agreement has been reached,” Vice President of Policy and Advocacy Jennifer Podku said. “While no settlement could ever fully heal the trauma that these families—and particularly the children—will live with for the rest of their lives, it’s a first step toward moving past that horrific time and ensuring that the large-scale separation of families at the border never happens again.”
“Family separation, or zero-tolerance policy, is the defining policy failure of the Trump administration — and one for which all Americans must hold all current and past administration officials accountable,” Las Americas Immigrant Advocacy Center Executive Director Marisa Limón Garza said in a statement. “Thousands of children were ripped from their parents arms, jailed in cages and camps, and our government ignored its own laws allowing vulnerable people to seek asylum at our borders.”
“While this settlement can never fully undo the harm and horror that these separated families had to endure as U.S. government policy, it gives legal power to the moral imperative that we can never let family separations happen again,” Garza continued. “We call on Congress to do their part and enshrine this prohibition on family separations at the border as a permanent part of U.S. law.”
Ensuring that families torn apart by the senseless zero tolerance policy have an opportunity to access a pathway to permanent legal status is the right thing to do, but legislation creating that legal status has not advanced in Congress despite being introduced numerous times by Sen. Richard Blumenthal (D-CT) and Rep. Joaquin Castro (D-TX). While the proposed settlement doesn’t include permanent legal status (only Congress can do that), the lawmakers said it does include similar protections to those proposed in their Families Belong Together Act.
“There are no settlement terms that could fully repair the damage of family separation, but the agreement announced today is an important step to compensate the victims and prevent history from repeating itself, and I’m grateful to the ACLU for their dedication to this case,” Rep. Castro said. “This settlement is a critical first step towards righting the wrong of family separation,” said Sen. Blumenthal.
Trump has refused to rule out reinstating the zero tolerance policy should he win the 2024 presidential election despite the fact that hundreds of children remain separated due to this vastly unpopular policy.
“When you have that policy, people don’t come,” Trump said without evidence during a May 2023 CNN Town Hall. “If a family hears that they’re going to be separated—they love their family—they don’t come. I know it sounds harsh.” There’s no proof that the family separation did anything to deter migration to the U.S., but what it did do was inflict unspeakable trauma and harm on thousands of children and adults who were seeking better lives. Physicians for Human Rights, a humanitarian organization made up of medical professionals, said in a 2020 report that zero tolerance rose “to the level of torture,” and was a form of “enforced disappearance.” Some parents spent months agonizing about the whereabouts of their children.
Advocates like the ACLU, KIND, and Las Americas have provided on-the-ground assistance reuniting families, a frequently exhausting process now also aided by the Biden administration’s Family Reunification Task Force. DHS said the task force has reunited more than 750 children, while another 85 are in the process of reunification. “The Task Force has also identified more than 290 U.S. citizen children who were separated from their parents during the relevant time frame, is working to confirm that they have been reunified with their families, and will offer them services to support their reunification.”
“Today’s news is a step toward healing and justice for the affected families, whose lives have been permanently altered by the trauma,” said America’s Voice Executive Director Vanessa Cárdenas. “It’s also a recognition and reminder that our government can still do the right thing, accept its responsibilities, and deliver on its promises for these affected families. We thank the tireless legal teams and advocates who led the way for accountability and the Biden administration for standing up for what is right and following through on its commitments. And we extend our thoughts to the affected families and individuals who are still in need of counseling, healing, and reunification. We hope that today’s news is a step towards long-awaited stability and safety.”
