Worth Noting: On Immigration

On Monday, there was a little bit of good news that you may have missed since we’re living in the middle of an international crisis while watching a Republican majority in the House that is bumbling, for the second time in a row, at electing a new speaker. The good news has to do with immigration, more specifically with steps towards the formal end of the tragedy that was the Trump Administration’s family separation policy. There is an agreement to resolve pending litigation with a settlement agreement that offers significant help for the families.

Merrick Garland had harsh words for the family separation policy that DOJ lawyers negotiating on the Administration’s behalf put at least a temporary end to: “The practice of separating families at the southwest border was shameful,” he said. “This agreement will facilitate the reunification of separated families and provide them with critical services to aid in their recovery.”

The agreement bans the separation of families at the border for the next eight years. That’s important because it binds the U.S. government, regardless of who is running it, for that period of time. Under our laws, Congress would have to act to implement a permanent ban, and of course, that’s not happening. The problems we face in this area can be largely laid at the doorstep of our elected officials in Congress who refuse to compromise and pass immigration reform. But this settlement is a positive step forward.

Those of you who follow Preet Bharara’s Stay Tuned podcast, or Preet’s and my Cafe Insider podcast may already be familiar with this topic, from an interview I did with the ACLU’s Deputy Director of the Immigrants’ Rights Project, Lee Gelernt, just over two years ago (and which you can still listen to for free). Last year, here at Civil Discourse, we also reviewed some of the complicated immigration issues involved in Title 42 and how people are treated at the border. If you’re interested in the issues underlying the lawsuit, those are two good places to start.

This week’s news involves the settlement reached in Ms. L., et al. v. ICE, et al., the 2018 class action case that asked the courts to enjoin further separation of parents and children at the southwest border. As of now, the settlement is an agreement between the parties. The court will give notice of the settlement agreement and a chance to object to it to members of the class—families who were subjected to separation. After that process is complete, the settlement agreement must be approved by the district judge before it becomes final. You can read the entire settlement agreement here.

Attorney General Merrick Garland, with Associate Attorney General Vanita Gupta, who took primary responsibility for negotiating the settlement, seated to his left

“Ms. L.” filed a lawsuit in the Southern District of California after she was separated from her child. The American Civil Liberties Union (ACLU) got on board and amended the lawsuit, bringing it as a class action of behalf of all parents separated from their children at the border. The amended lawsuit alleged violations of the families’ due process rights, as well as violations of the rights people seeking asylum in the United States have. In June 2018, the judge took limited action to stop separations encourage reunification of families that had been separated. If the Judge accepts the settlement agreement, the case will be at an end.

The proposed settlement includes the following provisions:

• new standards will be established to limit any future family separations

• there will be continued family reunifications

• there will also be support services for separated families, including behavioral health services, targeted legal support related to immigration claims, and limited housing assistance and medical coverage

The settlement doesn’t call for any of the victims of the policy to receive an award of financial damages. But it’s still the kind of win for migrant families that is long overdue in light of the abusive family separation policy that the Trump administration aggressively pursued, in the words of his first Attorney General Jeff Sessions, to deter people from trying to cross our southern border.

Associate Attorney General Vanita Gupta, who took the lead in negotiating the settlement, said, “the separation of families at our southern border was a betrayal of our nation’s values,” and that she hoped that the settlement would “help[] ensure that nothing like this happens again.”

In February 2021, President Biden issued an Executive Order establishing the Interagency Task Force on the Reunification of Families. A number of federal agencies including DOJ, DHS, and HHS were assigned responsibility for working with families on reunification. The task force searched thousands of government records to identify separated families. More than 750 children have been reunified with their families, and an additional 85 are currently in the process of being reunited. There are also more than 290 U.S. citizen children who were separated from their parents and the task force is continuing to confirm their reunification and offer them support services. That work set the table for the government to fulfill its obligations under the settlement agreement.

When I spoke with Lee Gelernt two years ago, there were serious concerns about whether these children could ever be reunited with their families, so this is encouraging progress. But no one should pretend their lives weren’t forever changed. It can be hard to see the individual trees if you’re looking down from above the forest. But in considering the possibility of a second Trump administration, family separation and the risk of a return to this ugly policy loom large. In and of itself, it’s sufficient reason to reject Trump, who has never shown the least bit of remorse for the damage he did to these families.

We’re in this together,

Joyce