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Why the Biden administration would pay as much as $450,000 to separated immigrant families

Bryan Chavez, left, and Yeritzel Chavez are reunited with their mother Sandra Ortíz, center, after Bryan was separated from her during the Trump administration’s family-separation policy. (Jabin Botsford/The Washington Post)
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For much of the past two weeks, Republicans have accused the Justice Department of doing Democrats’ political bidding. The reason: The Justice Department said it would look into threats against local school board members, which Republicans allege is intended to chill the speech of conservative parents (even as the policy only pertains to threats).

But a new development on another very sensitive issue should perhaps disabuse people of the notion that apolitical Biden administration officials are constantly minding the political fortunes of the Democratic Party. In responding to lawsuits stemming from the Trump administration’s family-separation policy, they’re looking at making a decidedly proactive and politically fraught decision.

The Wall Street Journal broke the news that the Biden administration is looking to settle with the immigrant families who were separated from their children during the Trump administration’s “Zero Tolerance” policy, which it later abandoned and a judge halted, ordering the reunification of the families. As The Washington Post and others confirmed, the administration is reportedly considering paying as much as $450,000 per person.

From The Post’s story:

The dollar amounts remain under discussion, but one person with knowledge of the negotiations said payouts could total $450,000 per person, with some families potentially receiving $1 million.
The U.S. government took more than 3,000 children away from their parents along the Mexican border in May and June 2018, the peak of Trump’s Zero Tolerance prosecution effort. Department of Homeland Security officials say the total number taken while Trump was in office exceeds 5,500.
In most cases, the children were separated from their parents by border agents and sent to government shelters, while their mothers and fathers were jailed to face prosecution for entering the country illegally.

Few recent political developments have been met with such a decidedly one-sided political response. Republicans quickly and almost universally denounced the idea, suggesting it amounted to huge cash payments to those who sought to illegally immigrate to the United States. They contrasted this with similar amounts paid to the families of American soldiers killed overseas. They suggested this would only encourage those who would seek to cross the border.

Former vice president Mike Pence offered a characteristic argument:

Even Rep. Adam Kinzinger (R-Ill.), who has aligned with Democrats in their critiques of former president Donald Trump, suggested this was a very bad idea.

“One reason I don’t believe the Democrats realize how threatened democracy is: this is dumb, will def[initely] embolden Trumpism,” Kinzinger said.

There is no question that, on its surface, this is not something the Biden administration will love taking part in. Even from a raw political perspective, giving huge sums of money to noncitizens who might or might not have had legitimate asylum claims to enter the United States means it takes some ownership of an extremely divisive situation, when it doesn’t have to.

This was a Trump administration policy, after all, but the Biden administration will have paid the money out, under terms it agreed to. It leads to a logical question: Why not allow the process to play out and let judges decide any damages that such families are entitled to? That would at least lay this at the feet of the Trump administration and its widely derided, on an unusually bipartisan basis, family-separation policy.

The simple answer is that the administration views it as being the right thing to do, given the cruelty and inhumanity of the policy.

More practically speaking, experts on immigration and immigration litigation say the Biden administration is stuck in an unenviable position. They also say that the potential settlements, while perhaps politically fraught, make plenty of sense from a governmental and fiscal perspective.

Heidi Li Feldman of Georgetown University says the government could face much-larger payouts if the litigation were to move forward — not to mention the costliness of defending so many different cases (the Journal reported about 940 claims have been filed). And, crucially, it involves alleged emotional distress inflicted upon children who were separated from their parents for lengthy periods of time — the kinds of things that are difficult to put a dollar amount on.

“If it goes to trial and one case wins an enormous verdict, that gives other families motivation not to settle,” Feldman said. “If a private business were in this situation, it would be extremely bizarre for them not to consider settling.”

Jesse Bless, the director of litigation at the American Immigration Lawyers Association who has worked on cases involving separated children, said the U.S. government has a distinct interest in settling and not extensively airing this ugly chapter in its recent history — even if it was clearly the doing of the prior administration.

“When we just make it about, okay, children were taken from their parents … how do we put a price tag on that?” Bless said. “And is it in the best interest of the government to put that dark time behind it? I think that’s a little more nuanced than headlines saying ‘half a million dollars.’ ”

The GOP pushback on the payments is also often vastly oversimplified. For instance, it often involves saying $450,000 payments would be given to undocumented immigrants, without noting that many of those involved were seeking asylum and had claims that could be legitimate. Feldman said she is “confident that a significant majority of the cases involve asylum seekers.”

Another is that, even if you allow that most of these cases involve asylum seekers, it’s not just awarding nearly a half-million dollars willy-nilly to anyone trying to cross the border; it’s doing so for those who had their families separated. In more than 1,000 cases, they haven’t been able to be reunited even years later.

Which brings us to the GOP argument that this would incentivize other would-be border crossers. To the extent such payments would create such incentives, it would do so for those who might benefit from similar sets of circumstances. But given the zero-tolerance policy that resulted in the family separations ended in 2018 and isn’t currently in place, that incentive doesn’t exist.

“I understand they say illegal immigrants can get money if they cross the border,” Feldman said. “But that assumes a level of irrationality on behalf of asylum seekers that is strange. … Getting this settlement would be premised on having your children separated from you.”

Feldman argued that not only would border-crossers know that’s no longer on the table, but even if they thought it was, earning such an amount of money would necessarily involve being separated from your children — which is something no parent would undertake lightly.

At the same time, Feldman acknowledged the political realities in the Biden administration awarding such payouts.

“I’m not saying that it wouldn’t resonate with some members of the American electorate. And one would hope that the Democrats are prepared to make the case that settling these cases serves the country’s interests,” Feldman said. “Juries looking at the specifics of how these families were treated could easily award millions of dollars per family. Such trials would also remind the world of just how outrageously the U.S. treated asylum seekers under the zero-tolerance policy.”

Those reminders would certainly reflect more upon the Trump administration than the Biden administration, and the easier political call would seem to be letting the chips fall where they may. This, after all, was a policy which Americans overwhelmingly opposed toward the end — by a nearly 2-to-1 margin.

But re-litigating all of it would also reflect negatively on the U.S. government as a whole, regardless of who currently runs it, and it could wind up being significantly more expensive than even the floated settlement numbers suggest. The Biden administration seems to be moving toward making a tough call to avoid all that, damn the torpedoes.