The Lingering Effects of Trump’s Family-Separation Policy

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“They had to use physical force to take the child out of his hands,” one Border Patrol agent told The Washington Post. The man, Marco Antonio Muñoz, was initially placed in a chain-link detention cell, but, so agitated over the separation of his family, was later taken to a local jail. “He yelled and kicked at the windows on the ride,” the agent said. The next morning, Muñoz was found dead in his cell, “a small pool of blood by his nose” and “a piece of clothing twisted around his neck.” This was May 13, 2018.

Muñoz’s tragic death is not a standalone incident, but rather part of a long history of complex and escalating policies surrounding immigration. The genesis of family separation can be traced as far back as 9/11, with the Bush administration’s creation of the Department of Homeland Security (DHS), tasked with, amongst its overarching missions, “ensuring the safety and security of our borders while managing a safe, orderly, and humane immigration system.” The genesis of family separation as a way to deter migration to the United States can be traced to Tom Homan, who Caitlin Dickerson describes, in The Secret History of Family Separation, as “the intellectual ‘father’ of the idea to separate migrant families as a deterrent.” As early as 2014, Homan proposed a new model—to prosecute parents who crossed the border illegally with their children, even those who came to the United States seeking asylum. Shortly after Homan’s proposition, the family-separation pilot in El Paso, Texas followed, together with the first reports of family separation in 2017, concerns over its legality, and indifference by the administration.

On May 7, 2018, the Trump administration announced the beginning of the now infamous “Zero-Tolerance Policy.” On paper, its goal was “to end the illegality in our immigration system.” Similarly, proponents argued that families were separated as a measure to prevent the smuggling and trafficking of children across the border or tragedies like the one in 2003, in which the bodies of eighteen migrants were found in and around a trailer at a South Texas truck stop. However, under the policy, federal authorities separated children from parents with whom they had entered the United States. Parents were then prosecuted and held in jail or altogether deported, while children were being placed under the supervision of the Department of Health and Human Services (HHS). Moreover, at the height of the Trump administration’s Zero-Tolerance Policy, reunification efforts were stalled without mechanisms to allow parents and children to locate one another once they had been separated. As Nan Schivone, Legal Director at Justice in Motion, described, “I don’t think they ever had a plan to keep track of the families or reunify them. This administration has been laser-focused on punishing migrants fleeing harm and dismantling the asylum and protection system in the United States.”

Dickerson’s investigation further uncovered that DHS officials were working “to prevent reunifications from happening,” whether by “placing parents whose prosecutions were especially speedy into [Immigration and Customs Enforcement] custody or in ‘an alternate temporary holding facility’ other than the Border Patrol station where their children were being held” or by “deliver[ing] separated children to HHS ‘at an accelerated pace,’ instead of waiting for federal contractors to pick them up,” all to “minimize the chance that they would be returned to their parents.” The brutality of the policy, however, was immediately evident to all, Democrats and Republicans alike. The American Civil Liberties Union (ACLU) filed suit.

In response to mounting public pressure less than two months after the policy’s implementation, on June 20, 2018, President Trump issued an executive order, calling not only for the initiation of proceedings against anyone who enters or attempts to enter the country illegally, which automatically triggered family separation, but also for “family unity.” The executive order, in effect, has been described as “among the most confusing and nonsensical of all [executive orders] produced by the Trump administration.” Nevertheless, reunification efforts began when, on June 26, 2018, U.S. District Judge Dana Sabraw issued a preliminary injunction in the ACLU’s suit, requiring U.S. immigration authorities to reunite children younger than five with their parents within two weeks, and the rest of the separated children within thirty days. Unfortunately, the Trump administration never met that deadline. To make matters worse, the separations continued until the final months of the Trump presidency.

On February 2, 2021, in “a broad, whole of government effort to reform our immigration system,” newly-elected President Biden signed an executive order forming the Interagency Task Force on the Reunification of Families (Task Force) in an effort to reunite children separated from their families at the United States-Mexico border. It is clear, however, that much work remains to be done: while facing criticism from Republicans for being too soft on immigration, the Biden administration has quietly extended other troubling Trump-era border policies. Thus, the work of immigration advocates, like the ACLU, Justice in Motion, and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCRSF), has been fundamental in these reunification efforts.

Justice in Motion’s on-the-ground Defender Network, for example, composed of human rights lawyers and organizations across Mexico and Central America, works closely with U.S. lawyers to help find the parents deported without their children. Today, Schivone said, the organization’s on-the-ground work remains the same, but, since the creation of the Task Force, their job now includes sharing information on the available recourses for family reunification—humanitarian parole, for example, which authorizes approved applicants to live in the United States for three years—with families, many of whom remain unaware of these remedies. Harnessing the full potential of the legal community, Schivone said, Justice in Motion previously had referred families who suffered harm as a result of the Trump administration’s family-separation policy to firms, nonprofits, and law school clinics, like Cornell’s very own Farmworker Legal Assistance Clinic, for advice and representation related to claims against the government under the Federal Tort Claims Act (FTCA).

One nonprofit to lead these FTCA cases is LCCRSF. In collaboration with the Asylum Seeker Advocacy Project, LCCRSF not only litigates FTCA cases, like Wilbur P.G. et al v. United States of America, but also, like Justice in Motion, bridges the gap between the nonprofit and private sectors by connecting families with firms. LCCRSF, in turn, provides firms with a central hub—“the eyes in the sky,” as Victoria Petty, Immigrant Justice Fellow at LCCRSF, described it on a recent call—of resources and strategy. To date, Petty said, LCCRSF is aware of over 900 claims against the government under the FTCA having been filed between 2019 and 2020.

In October 2021, a leak suggested that migrant families separated at the border by the Trump administration could be eligible to each receive hundreds of thousands of dollars in compensation, but, by December 2021, the Biden administration pulled out of negotiations. Now being litigated individually, FTCA cases like C.M. v. United States and A.P.F. v. United States, which recently survived the government’s motion to dismiss, would lay the groundwork for financial liability if won. A better solution, however, would be for the Biden administration to immediately resume and timely conclude negotiations to offer financial compensation to all affected families.

To begin to right these wrongs, individual and collective responsibility for the Trump administration’s staggeringly cruel and haphazard policies is needed. Not only must the architects of the family-separation policy be held to account, individually, but the United States must accept responsibility, collectively, for this official policy designed and executed at the highest levels of the federal government. Finally, preventing family separation in the future requires new efforts to establish much-needed legislation and, ultimately, congressional action. Congress should pass an adjustment act, allowing those affected by the family-separation policy to adjust their status and apply for lawful permanent residence, and codify a non-separation policy, ensuring that the federal government will never repeat the policies and practices leading to the separation of families at the border. Only then can we prevent a policy like Zero-Tolerance—and a tragedy like Muñoz’s death—from happening again.

Sasha Brigante is a second-year student at Cornell Law School, where, in addition to her involvement with the Farmworker Legal Assistance Clinic, she also serves as President of Cornell’s Cuban American Bar Association and Co-Director of Cornell’s International Refugee Assistance Project.

Suggested Citation: Sasha Brigante, The Lingering Effects of Trump’s Family-Separation Policy, Cornell J.L. & Pub. Pol’y, The Issue Spotter (October 30, 2022), https://live-journal-of-law-and-public-policy.pantheonsite.io/the-lingering-effects-of-trumps-family-separation-policy.