Opinion: Family separation is now barred by a class action settlement

By JONATHAN P. BAIRD

Published: 10-30-2023 8:35 AM

Jonathan P. Baird lives in Wilmot. 

With so much news going on, one story did not receive the coverage it should have. The Biden administration agreed to settle an ACLU class action lawsuit, Ms. L v ICE, that will prohibit any future administration from separating immigrant families at the border through 2031. It also allows parents the ability to apply for expedited asylum consideration, behavioral health care and housing support. The settlement did not include monetary reparation.

Back in 2018, an estimated 5,500 immigrant families were separated at the border while the family separation policy was in effect. The Trump administration zero-tolerance policy referred parents for prosecution for illegally crossing the border. The government would not allow children and parents to be detained together. Immigration officials sent the children to large warehouses that served as juvenile centers.

The cruelty of this Trump policy was appalling. Babies and toddlers were literally ripped from their parent’s arms. The youngest child separated from their family was only six months old. Even if a mother was breastfeeding, it did not matter. This was up there on the heartlessness scale.

The separated families were not told if they would ever see each other again. Many children and parents did not see each other for over a year or more. The trauma inflicted on these children will be life-long and emotional and cognitive damage are a certain result.

While many of the separated families have been successfully reunited, according to the ACLU, up to 1,000 children are still not with their parents. The government deported many of the parents and utterly failed to keep track of the scattered families. The disregard and contempt for this population could not be more apparent.

Lee Gelernt, the ACLU’s lead counsel in the case, pinpointed this reality:

“The Court said it appears that the Trump administration tracked property more diligently than they tracked the whereabouts of little children. We have been searching for years for these families.”

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The settlement requires the government to continue to help reunify families, including finding parents and guardians who were previously deported. The government committed to bringing them back to the U.S.. Before separating families, immigration officials now must have evidence of child abuse or they must be able to show the parent committed a serious crime. Under the settlement, the families’ lawyers would have to be notified and they could challenge a separation.

Even if they were previously denied, separated families would be able to apply for asylum. That alone is a big deal. Seeking asylum from persecution is a human right that is protected under American law. The law dates back to the aftermath of the Holocaust when the United Nations ratified the Universal Declaration of Human Rights.

Successive administrations have tried to restrict the right to asylum. While the Trump administration set a new low, the Biden administration has, to some extent, continued Trump-era policies. When their bogus Title 42 expired earlier this year, the Biden administration enacted a new policy that prohibited asylum for almost everyone who traveled through another country on their way to the U.S. Unless you were from Mexico, the new policy acted as a bar. Many asylum seekers are from south of Mexico.

Under U.S. and international law, asylum seekers should at least get a fair hearing. The Biden administration has thrown up additional roadblocks for asylum seekers. They created a cell phone app as an exclusive means for how most people can make an appointment at a port of entry for an asylum interview.

The app, CBP One, has proven very difficult to access. The asylum seeker needs a relatively new smartphone, a reliable internet connection and proficiency in one of the languages the app supports. Not surprisingly, many asylum seekers do not have up-to-date cellphones and getting through is a virtual impossibility.

Unable to obtain a CPB One appointment, they remain stranded in extremely dangerous circumstances where they are targets for kidnapping, violence and sexual assault. Parts of Mexico near the border are notorious for violence against immigrants. Many have been killed or have died of medical neglect.

No subject has been more demagogued than immigration. The MAGA movement and Donald Trump have poisoned the well by spewing hateful and dehumanizing lies about immigrants. They invoke great replacement and the fear that dark-skinned hordes are, to use Tucker Carlson’s words, replacing legacy Americans.

Republican governors like Ron DeSantis have treated immigrants like props in his political stunts, flying them to Martha’s Vineyard on false pretenses. You have government officials preying on vulnerable people who only want to have a better life.

Just to be clear on this, the United States is suffering from a worker shortage. There has been an increase in immigrants seeking entry into the United States. The demagoguery is the racism that sees immigrants who can contribute to the economy as a threat to white Americans. America has always been a melting pot and the current wave of immigration is no different than earlier waves. Immigrants are needed by our economy and should be welcomed.

Former President Trump has refused to rule out re-instituting the family separation policy if he is re-elected. While Trump may have no respect for the law, if he does want to bring back family separation, he will have to contend with Ms. L v ICE, which remains in effect for eight more years.

Nothing, though, can erase the awful trauma and harm the Trump administration has inflicted on innocent children.