{"id":4097,"date":"2022-11-01T00:06:01","date_gmt":"2022-11-01T00:06:01","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=4097"},"modified":"2022-11-01T00:06:01","modified_gmt":"2022-11-01T00:06:01","slug":"the-lingering-effects-of-trumps-family-separation-policy","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2022\/11\/01\/the-lingering-effects-of-trumps-family-separation-policy\/","title":{"rendered":"The Lingering Effects of Trump’s Family-Separation Policy"},"content":{"rendered":"\n

(Source<\/a>)<\/p>\n

\u201cThey had to use physical force to take the child out of his hands,\u201d one Border Patrol agent told The Washington Post<\/em><\/a>. The man, Marco Antonio Mu\u00f1oz, 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. \u201cHe yelled and kicked at the windows on the ride,\u201d the agent said. The next morning, Mu\u00f1oz was found dead in his cell, \u201ca small pool of blood by his nose\u201d and \u201ca piece of clothing twisted around his neck.\u201d This was May 13, 2018.<\/p>\n

Mu\u00f1oz\u2019s 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<\/a>, with the Bush administration\u2019s creation of the Department of Homeland Security (DHS), tasked with, amongst its overarching missions, \u201censuring the safety and security of our borders while managing a safe, orderly, and humane immigration system.\u201d<\/a> 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<\/em>, as \u201cthe intellectual \u2018father\u2019 of the idea to separate migrant families as a deterrent.\u201d<\/a> As early as 2014, Homan proposed a new model\u2014to prosecute parents who crossed the border illegally with their children, even those who came to the United States seeking asylum<\/a>. Shortly after Homan\u2019s proposition, the family-separation pilot in El Paso, Texas followed<\/a>, together with the first reports of family separation<\/a> in 2017, concerns over its legality<\/a>, and indifference by the administration<\/a>.<\/p>\n

On May 7, 2018, the Trump administration announced the beginning of the now infamous \u201cZero-Tolerance Policy.\u201d<\/a> On paper, its goal was \u201cto end the illegality in our immigration system.\u201d<\/a> Similarly, proponents argued that families were separated as a measure to prevent the smuggling and trafficking of children across the border<\/a> or tragedies like the one in 2003<\/a>, 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<\/a>. 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)<\/a>. Moreover, at the height of the Trump administration\u2019s 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<\/a>, Legal Director at Justice in Motion, described, \u201cI don\u2019t 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.\u201d<\/a><\/p>\n

Dickerson\u2019s investigation further uncovered that DHS officials were working \u201cto prevent <\/em>reunifications from happening,\u201d<\/a> whether by \u201cplacing parents whose prosecutions were especially speedy into [Immigration and Customs Enforcement] custody or in \u2018an alternate temporary holding facility\u2019 other than the Border Patrol station where their children were being held\u201d or by \u201cdeliver[ing] separated children to HHS \u2018at an accelerated pace,\u2019 instead of waiting for federal contractors to pick them up,\u201d all to \u201cminimize the chance that they would be returned to their parents.\u201d The brutality of the policy<\/a>, however, was immediately evident to all, Democrats and Republicans<\/a> alike. The American Civil Liberties Union (ACLU) filed suit<\/a>.<\/p>\n

In response to mounting public pressure less than two months after the policy\u2019s implementation, on June 20, 2018, President Trump issued an executive order<\/a>, 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 \u201cfamily unity.\u201d The executive order, in effect, has been described as \u201camong the most confusing and nonsensical of all [executive orders] produced by the Trump administration.\u201d<\/a> Nevertheless, reunification efforts began when, on June 26, 2018, U.S. District Judge Dana Sabraw issued a preliminary injunction<\/a> in the ACLU\u2019s 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<\/a>. To make matters worse, the separations continued<\/a> until the final months of the Trump presidency.<\/p>\n

On February 2, 2021, in \u201ca broad, whole of government effort to reform our immigration system,\u201d<\/a> newly-elected President Biden signed an executive order<\/a> 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<\/a>. Thus, the work of immigration advocates, like the ACLU, Justice in Motion<\/a>, and the Lawyers\u2019 Committee for Civil Rights of the San Francisco Bay Area<\/a> (LCCRSF), has been fundamental in these reunification efforts.<\/p>\n

Justice in Motion<\/a>\u2019s on-the-ground Defender Network<\/a>, 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\u2019s 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\u2014humanitarian parole<\/a>, for example, which authorizes approved applicants to live in the United States for three years\u2014with 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\u2019s family-separation policy to firms, nonprofits, and law school clinics, like Cornell\u2019s very own Farmworker Legal Assistance Clinic<\/a>, for advice and representation related to claims against the government under the Federal Tort Claims Act (FTCA).<\/p>\n

One nonprofit to lead these FTCA cases is LCCRSF<\/a>. In collaboration with the Asylum Seeker Advocacy Project<\/a>, LCCRSF not only litigates FTCA cases, like Wilbur P.G. et al v. United States of America<\/em><\/a>, 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\u2014\u201cthe eyes in the sky,\u201d as Victoria Petty<\/a>, Immigrant Justice Fellow at LCCRSF, described it on a recent call\u2014of 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.<\/p>\n

In October 2021<\/a>, 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<\/a>, the Biden administration pulled out of negotiations. Now being litigated individually, FTCA cases like C.M. v. United States<\/em><\/a> and A.P.F. v. United States<\/em><\/a>, which recently survived the government\u2019s 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.<\/p>\n

To begin to right these wrongs, individual and collective responsibility for the Trump administration\u2019s 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\u2014and a tragedy like Mu\u00f1oz\u2019s death\u2014from happening again.<\/p>\n\n\n\n

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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\u2019s Cuban American Bar Association and Co-Director of Cornell\u2019s International Refugee Assistance Project.<\/p>\n<\/div><\/div>\n\n\n\n

<\/p>\n

Suggested Citation: Sasha Brigante, The Lingering Effects of Trump\u2019s Family-Separation Policy<\/em>, Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter (October 30, 2022), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/the-lingering-effects-of-trumps-family-separation-policy.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s Cuban American Bar Association and Co-Director of Cornell\u2019s International Refugee Assistance Project.<\/p>\n","protected":false},"author":1,"featured_media":4109,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[18,1],"tags":[879],"class_list":["post-4097","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-feature","category-uncategorized","tag-jlpp"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/4097","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=4097"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/4097\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/4109"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=4097"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=4097"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=4097"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}