Federal Judge Set to Prohibit Separation of Migrant Families at the Border of United States

In a significant legal development, a federal judge in Southern California is on the verge of banning the separation of migrant families at the United States-Mexico border. This practice, which has been in effect for about seven years, has been used as a deterrent to discourage undocumented migrants from seeking asylum.

The judge’s decision comes after a provisional judicial agreement reached in October, which was supported by the Department of Justice and the families represented by the American Civil Liberties Union (ACLU).

Background: Cruel and Inhumane Practice

In June 2018, Judge Dana Sabraw issued a ruling prohibiting the Trump administration from forcibly separating migrant families at the southern border. The judge deemed this practice “cruel” and “inhumane,” stating that it violated the law and caused severe suffering to those affected.

Government acknowledged that over 2,600 forced separations took place between early May and June 20, 2018. However, a report by the Inspector General of the Department of Homeland Security revealed that such separations had occurred months prior, affecting thousands of undocumented individuals whose exact number may never be known.

According to an investigation by Univision Noticias published in January 2020, forced separations were authorized by the Trump administration through a memorandum signed by then-Attorney General Jeff Sessions on April 11, 2017.

The memo instructed prosecutors to criminally charge individuals for illegal entry into the United States, a civil offense. By filing criminal charges, the government forcibly took minor children away from their parents and placed them in foster care while the parents faced criminal proceedings.

After the legal process concluded, many parents were deported to their home countries without their children, and approximately 1,000 families are still navigating a complex bureaucratic process to be reunited.

Court Intervention: Putting an End to Forced Separations

Judge Sabraw, appointed by President George W. Bush, ordered an end to the forced separations in June 2018, granting the government a 30-day deadline to reunite the 2,654 affected families. However, due to a lack of coordination among the agencies involved in the separations, hundreds, if not thousands, of children went missing within a system ill-prepared to handle such procedures.

Biden administration established a Task Force in February 2021 to locate and reunite all affected families, which determined that the number of separations exceeded 5,000.

October Agreement: Seeking Justice for Separated Families

In October, a judicial agreement was reached between the ACLU and the Department of Justice, representing thousands of traumatized children and parents who were forcefully separated under the Trump administration’s illegal “zero tolerance” policy.

ACLU described the forced family separation as one of the most horrific and notorious issues of the Trump era, where babies were torn from their parents’ arms without prior notice. Children were sent to facilities thousands of miles away, and families were left uncertain about when or if they would ever be reunited.

The government’s care and tracking of the separated children were so deficient that when a federal court finally ordered reunification in late June 2018, officials struggled to identify which child belonged to which parent.

Details of the October settlement

ACLU estimates that between 4,500 and 5,000 children and their parents will be covered by the interim agreement reached by the court presided over by Judge Sabraw. The government will continue to identify families who were separated, fund their reunification in the United States and provide them with a pathway to apply for asylum here,” it said.

The civil rights group also said that “families will have access to benefits to keep them on their feet, such as work authorization, housing and legal assistance, and medical services.”

“The ACLU has resolved hundreds of lawsuits in our 103-year history, but none more important than this one,” ACLU Executive Director Anthony D. Romero said at the time. “To America’s lasting shame, we ripped children from the arms of their families to implement a xenophobic agenda,” he said.

Romero further said that “this agreement closes the darkest chapter of the Trump administration, but as welcome as it is, the damage inflicted on these families will always be tragic and irreversible.”

In turn Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead counsel in the lawsuit, said, “When we filed this lawsuit, no one thought it would involve thousands of children, that it would take us to so many countries in search of families, or that it would last for years.”

Efforts to achieve a firm ruling that prohibits forced separations at the border takes on new currency after former President Trump, who is leading in the race to become the Republican Party’s presidential candidate, has recently said that if he returns to the White House for a second term he would reinstate the ‘zero tolerance’ immigration policy, which includes forced separations of families at the border when they come seeking asylum.