Republican pundits and lawmakers have made political hay over news reports indicating that the federal government is engaged in negotiations involving a $450,000 per person payout to those victimized by former President Trump’s family separation policy.
President Biden has said directly that he would not support a payout that high. But the story—and the near-half-million figure—has nonetheless captured the imagination of right wing media, conservative think tanks and Republican lawmakers. On Dec. 2, top GOP Senators, including Sen. Mitch McConnell, introduced legislation to block settlement payments to separated families who “unlawfully entered the United States.” The politics are consequential: Biden’s ambivalent stance on immigration has become an acute vulnerability before a midterm year.
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But while lawmakers play politics, hundreds of migrant parents are struggling with the fallout of family separation, years later. Many parents who were deported under Trump without their children are only returning to the U.S. to reunite with them now. Of the roughly 5,500 families separated by U.S. officials under the Trump Administration, some 1,000 were deported while their children remained behind, in Immigration and Customs Enforcement (ICE) detention centers, shelters, or with sponsoring family members. Bringing those parents back to the U.S. is a costly affair—and someone has to pay for it. So far, nonprofits and immigrants themselves, many of whom are deeply impoverished, have shouldered the financial burden of trying to see their mothers, fathers, sons and daughters again.
The question of whether, and how much, the U.S. government should pay to help reunify families, and whether to compensate people for the trauma they experienced as a result of the family separation policy, is currently playing out behind closed doors, as part of ongoing settlement negotiations in dozens of court cases. While these negotiations are underway, many newly arrived parents reuniting with their children in the U.S. face urgent basic needs—many struggle to afford rent while they wait on work permits. Others say they can’t afford food, medications and other health care costs.
Lawyers representing separated families and NGOs who have worked to reunite families argue that parents that have been recently reunified with their children, or have yet to be reunified, need significant assistance immediately. “If [the government doesn’t] step up, families are going to be left vulnerable to re-traumatization,” says Ann Garcia, an attorney at the Catholic Legal Immigration Network, Inc. (CLINIC), a nonprofit that provides legal aid to immigrants. Garcia has also represented parents who were deported after being separated from their children by the U.S. government. “I know that every parent wants that [support]. We’re crossing our fingers that that happens.”
The ACLU’s class action case
The most notable case in which the federal government is engaged in settlement negotiations is Ms. L v ICE, a class action suit brought by the American Civil Liberties Union (ACLU) in February 2018 on behalf of parents who were separated by the U.S. government. In that case, the parents are seeking an end to family separation and the immediate reunifications of parents with their children. The litigation required the government to provide detailed information about how many parents were separated from their children—a requirement that ultimately revealed that more 5,500 parents were separated.
After Biden was inaugurated, the White House formed the Family Reunification Task Force in February, which was designed to streamline family reunification. It launched settlement negotiations with the ACLU in Ms. L. The negotiations so far have included discussions of how much the U.S. government should provide in immediate aid to families who are newly reunited in the U.S., says Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead attorney in the Ms. L case.
One of the ACLU’s central points is that process of family reunification does not end when a migrant parent arrives at a U.S. airport. Many parents are returning to the U.S. from deeply impoverished home countries, and have no income, no line of credit, and no way to make money immediately upon arrival. While the family reunification process provides parents with temporary legal status, it often takes weeks or months for work permits to be processed. “In some cases [the need is] very dire,” says Carol Anne Donohoe, managing attorney for Al Otro Lado’s Family Reunification Project, which helps in the family reunification process. “We’d get a message saying, ‘I’m very sorry to bother you, but we have no food.’”
Gelernt noted that, so far, reunified families’ basic needs are being met mostly “through private philanthropy,” like Al Otro Lado. While he said he could not comment on the specifics of the ongoing discussions in Ms. L v ICE, he noted that the ACLU is “hoping for some form of public-private partnership,” in other words financial assistance from the U.S. government while NGOs continue to pay for many of the resettlement costs.
Al Otro Lado, a nonprofit legal and humanitarian aid organization based in Southern California and Tijuana, says so far in 2021, it has paid nearly $38,500 in direct support while aiding the return of 31 parents. Between 2020 and 2019, the organization assisted a group of 58 people in their return to the U.S. for reunification, and the total costs were nearly $240,000. The costs include housing, food, medical needs and other necessities, and don’t include the cost of airline tickets and other travel expenses, according to Donohoe.
Other migrant-serving nonprofits, many of which are funded by private donations and operate on shoestring budgets, tell TIME they have spent hundreds of thousands of dollars to reunite parents and children in the last several years. Together and Free and Seneca Family of Agencies report paying, on average, $10,000 per family reunification in housing, food, clothing, some medical care.
“It’s crazy really. A handful of NGOs are providing these services,” Garcia, the CLINIC attorney, says. “Without [organizations like] Seneca, these families would be left out in the cold.”
In many cases, it’s the separated families themselves that must bear the financial burden. Viviana, who was 17 years-old in 2018 when she was separated from her father at the U.S.-Mexico border and put into an Arizona shelter, now must bear the financial brunt of getting to see her parents again. She has been working at a plant nursery to cover the $800 rent of a one-bedroom apartment that she shared with her little brother. (TIME is using Viviana’s middle name because of her family members’ uncertain immigration status.)
When her parents were allowed to return to the U.S. to reunify with her in September—a truly joyous occasion, she said—it came with an enormous financial responsibility. With her parents waiting for their work permits, Viviana must find a way to cover increased costs of food, utilities, and transportation. When she had to find a larger place to live, her rent alone nearly doubled, to $1,500. She and other immigrants in her position have relied heavily on NGOs, non-profits and church groups to help them make ends meet.
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A slew of other lawsuits
A second category of cases have been filed under the Federal Tort Claims Act, a 1946 statute that allows people to sue the U.S. for damages resulting from unlawful behavior by government officials. According to The Wall Street Journal, siting “people familiar with the matter” some 940 families have sought monetary compensation for the pain they endured during family separation.
The many cases are being litigated separately. In one example, five asylum seeking mothers and their children—who were between the ages of 5 and 12 when they were separated—are seeking compensation from the government in a lawsuit brought under the Federal Tort Claims Act, according to court records. The case is being decided by the U.S. District Court District of Arizona, but the court has put the case on temporary hold until January, according to court records.
The U.S. Department of Justice is currently negotiating a settlement to these cases, too—a process that’s entirely separate from negotiations in Ms. L over financial support for the basic needs of newly arrived parents. It’s these Tort cases, which the ACLU is also involved in, that caught widespread national attention in late October when The Wall Street Journal reported that the Biden Administration was in talks that included the possibility of paying $450,000 per person in compensation.
When Biden denied the $450,000 number in response to a reporter’s question, the ACLU issued a statement: “President Biden may not have been fully briefed about the actions of his very own Justice Department.”
A new White House task force
The White House’s Family Reunification Task Force and a steering committee, which is made up of leaders of nonprofits such as Kids in Need of Defense and Justice in Motion, marks a significant step forward, migrant advocates say. Under Trump, the family reunification process had been ad hoc: lawyers at nonprofits built cases for individual deported parents and in some cases won humanitarian parole for them to allow them to return to the U.S.
Now, the Family Reunification Task Force, housed in the Department of Homeland Security, has established a specific humanitarian parole program targeted at the subset of roughly 1,000 families where parents were deported without their children. Because of a variety of issues, including bad record-keeping by U.S. officials, some 270 parents have yet to be located, according to the Ms. L court records. The parole program allows deported parents the chance to return to the U.S. for three years without fear of re-deportation. It also offers these parents access to a work permit and the chance to renew their legal status at the end of the three year term. If the situation warrants it, a parent may also apply for asylum.
In September, the task force launched an online portal to help separated families register to begin the reunification process. The task force and NGOs that have partnered with it say the online portal will likely speed up the family reunification process. As of Dec. 4, 284 children have been identified through the help of the online portal, according to the Family Reunification Task Force. An additional 63 families have been reunified by the Task Force since its launch.
The task force itself has not received Congressional funding; it relies on non-profits to underwrite its efforts. “The Task Force is grateful for the support of the NGOs and private funders who have been supporting this mission, as we work though the challenges presented by legal and fiscal authorities,” a spokesperson for the task force told TIME.
What happens next remains unclear. ACLU’s Gelernt says the timing for when the myriad negotiations will conclude is uncertain. “In the Ms. L negotiations,” he says, “we are hoping to find and reunite all the families that were cruelly separated and give them a pathway to remain in the country so they can finally begin to heal from their trauma.”