U.S. could pay damages to separated immigrant families

In the spring of 2018, Ever Reyes Mejia and his 3-year-old son presented themselves near the Texas-Mexico border to request asylum in the United States. The Honduran migrants were taken into custody at a detention center in McAllen, Texas. Mejia told The Detroit Free Press that when U.S. agents then took him and left his son asleep in the cell, he didn’t realize they were sending his son away. “They didn’t even let me give him a kiss goodbye,” Mejia said. “They didn’t even let me warn him.”

U.S. agents sent the boy to Bethany Christian Services in Michigan and kept his father in detention. Mejia reunited with his son in mid-July 2018 at an Immigration and Customs Enforcement (ICE) office in Grand Rapids, Mich., after a judge ordered the government to return children younger than 5 to their parents.

The Mejia family was one of thousands separated under President Donald Trump’s zero-tolerance policy. On Oct. 28, The Wall Street Journal reported that the Biden administration is in talks to pay up to $450,000 per person to such families, although the president has denied the amounts would be that high. The negotiations could allow the government to settle out of court with those who have filed lawsuits seeking damages and funds to cover mental health treatment. But critics argue the settlement plan is unjust to American workers and will incentivize more illegal crossings.

The Trump administration started implementing its zero-tolerance policy in late 2017 and early 2018 as huge numbers of migrants approached the U.S. southern border. Immigration agents began detaining and prosecuting the majority of adults, leading to crowded detention centers and strained Border Patrol resources. Most of the families were asylum-seekers, requesting to stay in the United States because they feared persecution in their home country. At least some did not even cross the border, instead presenting themselves at legal ports of entry to make the claim.

Because the government is not legally allowed to detain children for very long, officials took thousands of children from their detained parents and transferred them to the care of the Department of Health and Human Services. That agency then placed them with foster families or relatives in the United States. Meanwhile, ICE kept the parents in detention and later deported some.

Some migrants take children who are not their own and pose as a family to gain release into the United States. ICE reported that its investigators interviewed 3,236 families from mid-April to late July 2019 and identified 432 fake families. Jennifer Podkul with Kids in Need of Defense told me earlier this year the committee her nonprofit is part of has not encountered any fakers among the separated families: “These are instances in which it was the biological parent or legal guardian, someone who had paperwork saying, ‘this is my child’ … who had been separated.”

In June 2018, after widespread criticism, the administration stopped the separations. But reuniting the migrant families has proven complex for many reasons, including difficulty contacting deported parents and poor government coordination and record keeping. President Joe Biden promised to prioritize reunions and created a task force soon after taking office, but 270 children remain separated from their parents, according to a court filing from last week.

In October 2019, the American Civil Liberties Union filed a federal lawsuit on behalf of several families, some of whom were apart for more than a year. The legal complaint described how separation from parents can affect children’s cognitive and emotional development. It said the parents experience “fear and anxiety, trouble sleeping, nightmares, painful headaches and dizzy spells” and are at higher risk for severe depression and suicidal ideation. It is one of multiple lawsuits seeking damages and money to pay for mental health counseling, with average pursued payouts of about $3.4 million per family, according to The Wall Street Journal.

The Journal cited interviews with unnamed sources who said the Biden administration is considering the $450,000 payments to settle with families before the lawsuits go much further. The American Civil Liberties Union has identified 5,500 children taken from caregivers, but the sources said the actual number of families who would come forward to claim the payments would likely be much smaller. They also said most of the families included one parent and one child, and some would receive smaller payments than the $450,000 maximum, depending on their situation.

Strong responses both for and against the idea followed the report.

“President Biden has agreed that the family separation policy is a historic moral stain on our nation that must be fully remedied,” said Lee Gelernt, an ACLU immigration lawyer involved in one of the lawsuits. Gelernt said the families should not only receive money but also the chance to stay in the United States permanently.

But Sen. Tom Cotton, R-Ark., disagreed, saying a “huge cash reward” would make the border crisis worse. He compared it to paying “damages to a burglar who broke into your home for the ‘psychological trauma’ they endured during the crime.” Florida Gov. Ron DeSantis called the idea of payments “a slap in the face to every hard-working American.” He said he was “very, very concerned about reports … that the Biden administration is going to pay with tax dollars hundreds of millions of dollars to people who came to our country illegally across the southern border as ‘damages.’”

House Republicans quickly introduced a bill to block the payment plan.

On Nov. 3, nearly a week after the initial report, a reporter asked Biden if he thought the $450,000 payments would incentivize illegal crossings. Biden said, “If you guys keep sending that garbage out, yeah, but it’s not true.” The reporter, Peter Doocy of Fox News, followed up, “So this is a garbage report?” Biden said, “Yeah, $450,000 per person, is that what you said? That’s not going to happen.”

But ACLU Executive Director Anthony Romero suggested that “President Biden may not have been fully briefed about the actions of his very own Justice Department.”

White House deputy press secretary Karine Jean-Pierre said during a news briefing last Thursday that the president was “perfectly comfortable with the Department of Justice settling with individuals and families currently in litigation with the U.S. government” and said it was the specific $450,000 amount that Biden had called “garbage.” Two days later, Biden said, “If, in fact, because of the outrageous behavior of the last administration, you coming across the border, whether it was legal or illegal and you lost your child, you lost your child, he’s gone, you deserve some kind of compensation, no matter what the circumstance.”

Michelle Mittelstadt at the Migration Policy Institute said there is no direct precedent for making such payments to a class of immigrants, but the government has likely compensated families for wrongful deaths in immigration detention: “Perhaps the precedent isn’t just in the immigration context, but more broadly in any case where a government agency is responsible for negligence or the infliction of harm, for example in the child protection realm.”