SAN DIEGO (CN) — After the U.S. government and migrant families separated at the U.S.-Mexico border came to a proposed settlement in October, a federal judge in San Diego signed off on a final settlement on Friday on a lawsuit against the U.S. Immigration and Customs Enforcement and former President Donald Trump's “zero-tolerance” policy of separating children from their parents suspected of crossing the border illegally.
“It does represent one of the most shameful chapters in our nation’s history,” said U.S. District Judge Dana Sabraw, a George W. Bush appointee, about the “zero-tolerance” policy, before signing the settlement agreement in the U.S. District Court for the Southern District of California on Friday.
Although the settlement comes as close to rendering justice for the children and their parents who were separated at the U.S.- Mexico border, it can’t fully rectify the harm done to them by the U.S. government, especially the psychological harm and trauma caused by an unconstitutional policy that put children of migrants into foster care facilities in the U.S., while their parents were deported.
“It’s unfortunate, but we can only bring about a certain amount of justice to all of this,” Sabraw said.
There are currently at least 68 children of U.S. citizen parents that were separated at the border who have yet to be reunited, and 297 children who are U.S. citizens with non-citizen parents who have also yet to be reunited.
The settlement mandates that the “zero-tolerance” policy, or a similar policy, can’t be reenacted by a presidential administration for eight years. It also funds efforts to reunite some 4,500 to 5,000 children separated by the policy with their parents in the U.S, and calls for a pathway for asylum in the U.S. and benefits for people affected by the policy, like work authorization, housing and legal and medical services.
At the request of the government’s attorneys, Sabraw's order takes effect Dec. 11.
Some of these benefits outlined in the settlement were already made available to separated families through a task force created to reunite families under the Biden administration, but the proposed settlement goes a step beyond the purview of the task force by offering asylum assistance and barring future family separations and making the task force itself binding.
The lawsuit was originally filed in 2018 on behalf of a Congolese mother and her six-year-old daughter who had been separated at the border by Immigration and Customs Enforcement. ICE sent the mother and daughter to detention sites thousands of miles apart, without providing any meaningful contact for months.
The policy was enacted by the Trump administration in 2018 to deter people from illegally immigrating across the U.S.-Mexico border. The policy led to parents suspected of crossing the border illegally to be deported, while their children were kept in federal custody, or sent to live with sponsor families or in foster care facilities within the United States. Even some people who applied for asylum legally at the border were subject to being separated from their families.
After images of children held in cages and audio of children in federal custody crying inconsolably, begging for their parents, went public, growing public condemnation, protests and political and legal pressure forced the Trump administration to sign an executive order to stop the program in the summer of 2018. Sabraw then issued a nationwide injunction and ordered the federal government to reunite all of the children separated by the policy within 30 days.
Since that ruling, the federal government asked for more time to find parents of children separated at the border because of poor record-keeping and a lack of a reliable system of maintaining contact information with the children’s parents.
Trump, now the front runner candidate for the Republican presidential nomination in 2024, refused to rule out the possibility of reinstating the family separation policy in a CNN Town Hall event earlier this year.
Lee Gelernt, an attorney with the American Civil Liberties Union who represented the separated migrant families in the case said if another presidential administration does try to reenact the policy, they’ll be back in court to challenge it.
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