What Biden could do about family separations

The Biden administration will soon inherit a crisis of President Donald Trump’s making: the forced separation of at least 5,400 migrant families, many of whom have yet to be reunited even after three years apart.

Attorneys at the American Civil Liberties Union who have been representing the families since 2018 still haven’t been able to locate the parents of 626 children, and many more families remain separated. In an October campaign ad, President-elect Joe Biden promised he would convene a task force to find and reunify children with their families. He said he would also stop prosecuting parents for crossing the border without authorization, which is how Trump justified separating families.

“Those kids are alone. Nowhere to go,” Biden said during a presidential debate in October. “It’s criminal.”

But immigrant advocates believe Biden needs to go further than simply reuniting the families in order to begin to make amends for the policy, which has inflicted what could be permanent psychological damage on those affected. They have called on the incoming administration to facilitate congressional hearings investigating the policy, offer the families legal status in the US and set up a victims fund, among other provisions.

Given that the family separations policy has drawn bipartisan condemnation and is deeply unpopular, Biden has a mandate to move forward on additional relief.

“We need to make them as whole as possible,” Gelernt said in a press call. “We can never completely undo the damage because the trauma is potentially irreparable, but we need to do everything possible.”

Family separations aren’t continuing on a wide scale, but the damage has been done

The Trump administration started separating families in immigration detention back in 2017, beginning with a pilot program in El Paso. The practice was later expanded across the border in the spring of 2018, when former US Attorney General Jeff Sessions announced what’s called the “zero tolerance policy” under which the government started prosecuting any adult who crosses the border without authorization.

Parents were sent to immigration detention to await deportation proceedings. Their children, meanwhile, were sent to separate facilities designed to hold children and, in some cases, released to other family members in the US or to foster homes. Previous administrations, in most cases, would have simply released the families from detention together if there was insufficient room in family detention facilities.

When a federal judge ordered the families reunified in the summer of 2018 the government could not locate many of the children’s parents. By then, more than 4,000 families had been separated. Some of the parents had already been deported back to their home countries in Central America.

Some families have since been reunited, but attorneys are still trying to find the parents of 628 children. After public outcry, the Trump administration decided earlier this month to provide a database of phone numbers and addresses that could help locate the parents — information it had refused to release for over a year to attorneys and nonprofits, claiming that it did not exist. Meanwhile, some nonprofit groups working on the ground in Central America were going door-to-door to find the parents.

The government is no longer invoking the zero tolerance policy as a means to separate families en masse. But since US District Judge Dolly Gee’s June 2018 ruling, it has separated more than 1,100 additional families on a case-by-case basis where it finds that the parents are unfit to care for their children. Officials have cited DUIs and nonviolent offenses from a decade ago, the fact that the parents entered the US without authorization and, in one case, that a father couldn’t change diapers quickly enough as grounds to take children away, according to Lee Gelernt, the lead ACLU attorney representing the families. He has argued that the Trump administration violated the court order in doing so.

The administration has also tried to separate families by other means — or prevent families from crossing the border in the first place.

During the pandemic, the administration pressured parents already detained within the US to voluntarily separate from their children by presenting them with what the administration has called a “binary choice”: Either allow their children to be placed with relatives or a foster family in the US while the parents remain detained, or stay together as a family in indefinite detention. No families, however, agreed to separate.

The Trump administration has also been turning away all migrants arriving on the southern border on account of Centers for Disease Control and Prevention public health restrictions. meaning that incoming families are no longer being detained in the US. Those restrictions have largely replaced other policy barriers to seeking protections in the US that were implemented prior to the pandemic.

Congress could investigate the family separations policy

Biden has not elaborated on what his proposed task force would look like or how it would support ongoing efforts to reunify families. But Jennifer Podkul, vice president for policy and advocacy at the legal aid group Kids in Need of Defense, said in a press call that the task force should ensure that the organizations that have been working on the reunifications have every relevant piece of contact information for the affected families available and provide funding to increase their capacity to conduct searches on the ground. It should also put in place policies and procedures that will facilitate the swift and safe return of parents to the US so that they can reunite with their children and offer reprieve from deportation.

Many want to make sure his administration doesn’t stop there.

Rep. Joaquin Castro, the chair of the Congressional Hispanic Caucus and vice chair of the House Committee on Foreign Affairs, told Vox that he wants Congress to investigate the policy, ensure it never happens again and hold the Trump administration officials behind it to account. He suggested that the effort be modeled after the House select committee on the climate crisis created in January 2019, which has held a series of hearings investigating the causes and effects of the climate crisis and sought to build a framework for future legislation delivering solutions.

Lee Gelernt, the ACLU’s lead attorney working on family reunifications, told Vox that the fact that the Trump administration suddenly found new contact information for the missing parents in December is proof that more transparency into the family separations policy is needed.

“The Biden administration should immediately begin to try and uncover the full story of what occurred under the Trump administration and support congressional efforts to do so as well,” he said.

Such a committee could also forward information to the Department of Justice about Trump administration officials who intentionally violated human rights, agency policy or federal law in facilitating family separations, potentially leading to prosecutions. Some have suggested that child abuse or torture could be among the charges.

But ultimately, “any decision to prosecute would be separate and apart from the commission itself,” Castro said. And Gelernt said in a press call earlier this month that he does not believe that the Biden administration would pursue such prosecutions.

Biden could offer legal status to affected families

Gelernt said that he remains confident that his organization and their partners will ultimately find the remaining families. While he would welcome any help from the Biden administration in achieving that mission, he says that is “not where we would like to see the new administration concentrate its efforts.”

Rather, he is calling on the Biden administration to offer the thousands of affected families legal status in the US.

“Only the government can reunite the families and provide them with legal status in the United States,” he said. “The Biden administration cannot lose sight of the fact that during the litigation we learned that there were at least 5,400 families who were separated and who need relief, many of whom have now not seen their children for years.”

While 628 parents have yet to be found and reunified with their children, many more have been found but remain separated because the Trump administration will not allow them to return to the US. In some cases, parents were deported without their children and in others, both parents and their children were deported after they were separated. The Trump administration could unilaterally allow them to return at any point, offering them administrative forms of relief from deportation.

“Thus far, the Trump administration has given parents only two horrendous choices: remain permanently separated or bring their child back to the danger from which they fled,” Gelernt said.

Gelernt said that the Biden administration also must refrain from deporting any more parents or children who were separated.

The federal government could also pursue legislation ensuring legal status for affected families. A potential model already exists: Castro proposed bicameral legislation with Sen. Richard Blumenthal (D-CT) that would give all affected children and their parents or legal guardians outside the US the opportunity to return with legal status. All of those who have not committed serious criminal offenses would also have the opportunity to apply for a green card and, later, citizenship. The bill would also increase funding for federal programs to educate affected families about their rights and help them obtain legal representation.

Affected families need additional aid

Immigrant advocates are also calling on the Biden administration to deliver additional aid to families who have undergone the trauma of separation, which the Trump administration knew about before moving forward with the policy anyway.

Commander Jonathan White, who previously oversaw the government’s program providing care to unaccompanied immigrant children, told Congress that, beginning in February 2017, he had repeatedly warned the officials who concocted the policy that it would likely cause “significant potential for traumatic psychological injury to the child.”

A September 2019 government watchdog report confirmed those effects, finding that immigrant children who entered government custody in 2018 frequently experienced “intense trauma” and those who were “unexpectedly separated from a parent” even more so.

Each child reacts to family separation differently. But psychologists have observed three main kinds of effects: disruptions to their social attachments, increases in their emotional vulnerability, and, in some cases, post-traumatic stress disorder, Lauren Fasig Caldwell, director of the American Psychological Association’s children, youth, and families office, said.

Those symptoms could be short-term or they could persist; they could also not even manifest until a child enters their teen years or adulthood. Any of them could significantly hinder a child’s later success in academics and in the workplace.

Parents who were separated from their children have experienced their own trauma — which may manifest in symptoms similar to those that researchers observe in children — and may not have the mental and emotional capacity to be able to provide what their children need.

Podkul said that the administration should also ensure that families living in both the US and abroad receive financial compensation for the “pain and suffering they have endured.” Former 2020 Democratic presidential candidate Pete Buttigieg, whom Biden has tapped for a Cabinet position as secretary of transportation, had similarly proposed offering reparations for separated families on the campaign trail.

In the meantime, the ACLU and others have filed lawsuits seeking financial damages on behalf of affected families against individual Trump administration officials who facilitated the separations, including Sessions, White House senior adviser Stephen Miller, and former Department of Homeland Security Secretary Kirstjen Nielsen, among others. Those lawsuits are still pending.

Gelernt has also suggested creating a victims fund, which could help cover medical or mental health care costs, as well as other basic necessities for separated families that are still struggling.

“There are many mechanisms for doing so, but what is important is that the Biden administration immediately provide relief to ease the suffering,” he said.