Tragedy of Family Separation: Six years ago, a man came to the U.S./Mexico border with his five-year-old daughter, looking for safety in the United States.
At home, a rival political faction had been making death threats against him and his family. That compelled him to take his daughter to the United States to seek asylum for them both.
But this was 2018—the era of family separation. As soon as the pair arrived at the border, Customs and Border Protection forcibly took the man’s daughter away. They sent him to a detention center, and his five-year-old was sent by herself to a separate facility on the other side of the country, 2,000 miles away. He wouldn’t be able to speak to her again for nearly a month. Once he was allowed communication, it took the form of weekly phone calls.
As this was unfolding, a lawsuit called Ms. L v. ICE was progressing through federal court. The American Civil Liberties Union was suing the government on behalf of a woman from the Democratic Republic of Congo and her seven-year-old daughter, who had also been forcibly separated by the U.S. government at the border and sent to separate facilities on opposite sides of the country.
The litigation had been brought a few months before the man arrived at the border with his daughter. Over five years later—in October 2023—a settlement agreement was finally reached. Under the terms of the settlement agreement, a volunteer attorney working with the American Immigration Council’s Immigration Justice Campaign was able to swiftly have the man’s removal case dismissed so that he and his child could stay in the United States and finally apply for asylum together.
Many more families also stand to gain some redress from the Ms. L settlement. Thousands of families were violently separated at the border from 2017 to 2021, under a policy the Trump administration put in place to deter migration. The true number of family separations may never be pinned down with certainty—those responsible knew at the time that they had no system for tracking the children or reuniting them with their families.
In February 2021, the Biden administration established a Family Reunification Task Force to help reunite families that were separated during that time. As of late 2023, the task force had identified 4,227 children who had been separated from their families, had facilitated the reunification of 775, and had identified another 2,372 who had been reunited under other circumstances—leaving at least 1,008 children known to still be separated from their families.
The Ms. L settlement requires the government to provide several services to the families who are class members, including housing assistance, mental and physical health care, legal services, and work permits. It also provides ways for the families to reunite, including by allowing parole requests from family members who are outside the United States. For example, if a mother and child traveled to the United States and were separated at the border, and the child’s father remained in their home country, the father can apply for parole to come to the United States and reunite with his wife and child.
For most of the relevant families in removal proceedings—like the man who worked with the Immigration Justice Campaign volunteer—ICE is supposed to dismiss the removal proceedings so the family can apply for asylum through U.S. Citizenship and Immigration Services. And for those who are in expedited removal or who have reinstated or expedited removal orders, the Department of Homeland Security should rescind the orders so the person can apply for asylum.
The settlement also prohibits U.S. officials from separating migrant families at the border for eight years, outside of limited circumstances such as danger to the child or a medical emergency. When separations do occur, the settlement calls for procedures to ensure the government tracks the children and notifies the families’ attorneys.
The Ms. L case was just one of dozens that have been brought against the government in the years since family separation was instituted. In September 2019, the American Immigration Council filed C.M. v. United States on behalf of five asylum-seeking mothers and their children, seeking monetary compensation for the trauma they suffered under family separation. A trial in that case is scheduled to begin in April 2024.
In addition to the results for the separated families, the Ms. L case played a role in shedding light on the tragedy of family separation. When the judge in the case, Judge Dana M. Sabraw, approved the settlement, he remarked on his initial shock and disbelief when the facts of the case were first laid out, telling the lawyers, “When you first brought the case, the allegations were sensational, and it was far from clear to me that this could be happening.” Throughout the proceedings, he became convinced and horrified: “There will, at the end of the day… there is going to be several children who are not found.”
While the Ms. L settlement is an important step for many of the families who were separated, it can’t undo the trauma they have endured. The government should do everything in its power to settle outstanding lawsuits, ensure that family separation is fully acknowledged, and take every step possible to ensure it never happens again.
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