The Washington PostDemocracy Dies in Darkness

Biden says separated migrant families deserve compensation. But in court, the Justice Dept. says they’re not entitled to it.

Minors wait inside the Border Patrol Central Processing Center in McAllen, Tex., in 2019. (Carolyn Van Houten/The Washington Post)

Two months after President Biden said migrant families separated at the border under the Trump administration deserve compensation, his administration’s lawyers are arguing in federal court that they are not in fact entitled to financial damages and their cases should be dismissed.

The Justice Department outlined its position in the government’s first court filings since settlement negotiations that could have awarded the families hundreds of thousands of dollars broke down in mid-December.

Government lawyers emphasized in the court documents that they do not condone the Trump administration’s policy of separating the children of undocumented migrants from their parents. But they said the U.S. government has a good deal of leeway when it comes to managing immigration and is immune from such legal challenges.

President Biden promised a more humane approach to U.S. immigration policy, but his administration has already faced two crises on the U.S.-Mexico border. (Video: Drea Cornejo/The Washington Post)

“At issue in this case is whether adults who entered the country without authorization can challenge the federal government’s enforcement of federal immigration laws” under federal tort claims laws, the Justice Department said in a Jan. 7 brief in a lawsuit in Pennsylvania. “They cannot.”

The legal strategy reflects the Biden administration’s awkward position as it shifts from championing the migrant families politically to fighting them in court. Migrant families have filed approximately 20 lawsuits and hundreds of administrative claims seeking compensation for the emotional and sometimes physical abuse they allege they suffered during the separations.

The motions to dismiss the cases were filed in a pair of lawsuits in Pennsylvania and California. Lawyers for the families said they expect the Justice Department to take a similar stance in other cases.

Biden faces highly charged legal fight over family separations

“The moment they said they were going to back away from settlement negotiations, this is where they were headed,” said Conchita Cruz, co-executive director of the Asylum Seeker Advocacy Project, which is representing migrants in similar lawsuits. “If the government wants to actually win these cases, then they do have to argue that the families aren’t eligible. That’s what is so shocking.”

Bree Bernwanger, a senior attorney at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, who is representing three families in the Northern California case, said the Justice Department’s efforts to dismiss their lawsuit is “incredibly hypocritical.”

“They’ve come to court making fundamentally the same legal arguments as [President Donald] Trump,” she said in an interview.

The White House referred questions on the legal filings to the Justice Department, which declined to comment.

But while immigrant advocates and liberals are likely to be furious at the administration’s position in court, some Democrats say privately that it has a political upside. The image of the administration fighting against the large payments, they say, could blunt GOP arguments that the administration is too soft on immigration.

The Trump administration separated more than 5,500 children from their parents at the border in an effort to deter mass migration and punish families that crossed into the United States, according to government figures. Trump officials also defended the government against the migrants’ lawsuits and fought unsuccessfully to dismiss two of the cases in Arizona.

Biden, in contrast, blasted the family separations on the campaign trail, declared the separations a “human tragedy” after taking office and created a task force to reunite families that remain apart. The family separation policy was widely unpopular, and Biden’s sharp criticism of it was a central way he sought to distinguish his immigration policy — and his administration’s worldview — from Trump’s.

Once he became president, Biden’s Justice Department negotiated with the families’ lawyers for eight months in an effort to settle the families’ legal claims. But talks stalled last month after the Wall Street Journal reported that the government was in talks to pay individuals as much as $450,000 each.

Republicans quickly expressed outrage, saying people who crossed the border illegally should not be receiving such hefty payments at taxpayers’ expense. Biden himself initially dismissed the Journal report as “garbage,” but he later said he was referring only to the size of the prospective payments — and that he thought the families deserve compensation for the suffering they endured.

“If in fact, because of the outrageous behavior of the last administration, you were coming across the border, whether it was legal or illegal, and you lost your child — you lost your child — it’s gone — you deserve some kind of compensation, no matter what the circumstance,” Biden said in November. “What that will be, I have no idea.”

Family separation talks have broken down, attorneys say

But that leaves the administration at a precarious crossroads between political pressures and legal realities. While talks broke down amid an outcry over the potential size of the payments, courts could hand down even bigger damage awards, and once in court the administration faces pressure to use all the legal tactics at its disposal.

Most of the migrants’ lawsuits had been on hold during the eight months of negotiations, as lawyers for both sides initially said they were making progress toward a settlement.

But now the two sides have returned to a fully adversarial posture. “So we’re back alive,” Judge Edward G. Smith told the lawyers in the Pennsylvania case Thursday.

Justice Department attorney Veronica Finkelstein told the judge that both sides had been “getting to a place where there might be a framework agreed upon” when “there just became a complete impasse.”

“We certainly remain open to further settlement negotiations in the future,” she said.

No such talks seem imminent, however. The government said in its motions to dismiss the lawsuits that the migrants’ claims are “not compensable.”

The legal dispute centers on whether the migrants can sue the government, mainly under the Federal Tort Claims Act.

Congress can create exceptions for individuals to sue the government for specific reasons, but it did not do so in this case, the Justice Department says.

Government lawyers wrote that the families “cannot prevail” against the government even if the family separation policy was a bad one that had “profoundly negative effects.”

“The government does not defend the merits of the policies at issue in this case, which have now been repudiated,” Justice Department lawyers said in a filing in the California case.

One client, identified by the pseudonym “Erendira C.M.” to protect her privacy, said she was separated from her then-6-year-old daughter in 2018 after fleeing Guatemala to seek asylum in the United States. Erendira said she met with Homeland Security Secretary Alejandro Mayorkas in August and that he “told us that it was his job to support us after what we suffered.”

“I feel betrayed and deeply sad now that they’re fighting us in court,” she said in a statement released by her lawyers.

The Department of Homeland Security referred questions to Justice, which is handling the litigation under Attorney General Merrick Garland.

DHS spokeswoman Liza Acevedo said the agency is working to reunite families who remain separated, regardless of what happens with the lawsuits. Officials also have provided families with counseling, “humanitarian parole” to stay in the United States for three years, and permission to work legally, she said.

If the cases are not dismissed, the Justice Department has asked the judges to transfer the cases to the border states where the migrants crossed into the United States. Lawyers for the families oppose the move, saying those courts are far from where the migrants live now.