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Biden faces highly charged legal fight with migrants whose children were taken away under Trump

Two Honduran women traveling with children are detained by U.S. Border Patrol in Granjeno, Tex., in 2018.
Two Honduran women traveling with children are detained by U.S. Border Patrol in Granjeno, Tex., in 2018. (Jahi Chikwendiu/The Washington Post)
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Beatriz was 3 years old when U.S. authorities separated her from her father, Jairo, shortly after they arrived from Guatemala at the U.S. border on Christmas Eve 2017. He was detained and developed pneumonia. She was sent to New York, where a woman who took her in hit her so hard with a belt that it left a scar, she told her dad.

Ana fled Guatemala a few months later with her sons Jaime, 8, and Mateo, 7, and she says U.S. officials separated them for seven weeks, adding that Mateo still cannot bathe alone, sleep by himself or stand to be apart from his mother.

These are two of the many allegations behind at least 19 lawsuits — and hundreds of administrative complaints — filed against the federal government by migrants who say their children were separated from them by the Trump administration. The plaintiffs, who use pseudonyms in their legal filings to protect their privacy, are seeking financial compensation after enduring what was widely regarded as one of President Donald Trump’s harshest policies.

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)

But now, much of the anger surrounding the issue has been redirected toward President Biden, threatening to escalate into a bigger furor as he embarks on his second year in office. Negotiations between the administration and the families’ attorneys over a monetary settlement broke down in December, and the lawsuits are starting to resume in court, some this week.

Family separations: Settlement talks with Biden administration have broken down, attorneys say

That pits administration lawyers against immigrants who had their children seized — a legally and politically perilous scenario for a president whose support from Latinos and liberals is already shaky.

In a sign of the difficult fight ahead, lawyers in one case refiled motions Tuesday to compel the government to turn over “tens of thousands” of internal documents, including 10,000 pages of Justice Department “emails, records, and handwritten notes” about Trump’s separation policy. The motions had been set aside while talks were underway.

Such clashes could play into a tough political dynamic. On the left, immigration activists are accusing Biden of failing to live up to his promise to repair the damage inflicted by Trump. On the right, critics are seizing on a report that the administration was in talks to pay people up to $450,000 each, saying that amounts to coddling people who sought to cross the border illegally.

A year after taking office, Biden’s efforts to unwind the Trump immigration policies he sharply condemned have been messy, sporadic and politically fraught. After moving quickly to curb some of his predecessor's most controversial approaches, Biden has, in some key ways, adopted a more restrictive posture toward migrants in recent months.

Some activists accuse the administration of cowardice.

“His instinct is a very defensive one,” said Julián Castro, who served as secretary of housing and urban development in the Obama administration and ran for president against Biden. “It tends toward an enforcement-based approach and an approach that sees immigration as a third rail of politics. Generally, the administration is scared of that issue.”

In Castro’s eyes, that was evident in Biden’s initial comments about the family separation cases, when he dismissed a report about the negotiations as “garbage.” Later, Biden said he had only been rejecting the notion that individuals might get as much as $450,000, as reported in the Wall Street Journal — not the basic idea of compensating the families.

The White House has been quiet since then about the settlement talks. But Biden officials defend their approach to immigration more broadly, saying the president is methodically undoing Trump’s harsh policies while contending with an unforeseen and challenging surge of migrants.

“This administration is committed as much today as we were on Day 1 to bringing humanity to our immigration system,” said Biden’s senior adviser for migration, Tyler Moran, who is expected to leave the White House soon. “We’ve faced a number of challenges this year due to changing migration patterns, and we’ve really sought to take those on responsibly and thoughtfully and will continue to work on putting a system in place that we think represents American values.”

The family separation cases show how the politics of immigration have swung wildly in Biden’s first year. Sen. Thom Tillis (R-N.C.), who in 2018 spoke out against separating migrant families, has now introduced a bill to block Biden from compensating them.

“I will continue to monitor the DOJ as they move to litigate these cases individually and push back against any outcome that will result in millions of dollars being handed out to illegal immigrants,” Tillis said in a statement last month after the settlement talks broke down.

Biden — who during a 2020 debate with Trump called the family separation policy “criminal” and then ran an ad highlighting that moment — is saying little about the matter. But some Democrats contend that if the administration does end up paying the families significant damages, it would be politically less complicated for Biden to explain he was forced by the courts to do so.

“If it takes longer than one or two sentences to explain why you’re paying money to people who entered the United States without permission, you’ve already lost the battle,” said Leon Fresco, a Justice Department official in the Obama administration. “It’s easier, in one sentence, to say the judge made them pay.”

When Biden took office, he won some praise for forcefully rejecting Trump’s widely unpopular family separation policy, which had been criticized even by some Republicans, and for creating a task force to help reunite families still living apart.

But complications arose quickly when the families began demanding compensation, some seeking payments in the millions. They described ongoing pain and suffering that included nightmares, anxiety and suicidal thoughts, court filings show.

Both sides pushed for a global settlement rather than a series of individual judgments, hoping to avoid months of costly legal battles. If they went to court, the families faced the potential for lengthy litigation with little payoff, and the government ran the risk that juries would order the administration to make huge payouts.

However, talks stalled in late October, according to people with knowledge of the situation, when the Journal reported that payouts totaling $450,000 per person were under discussion, with some families potentially receiving $1 million or more.

Six days later, Biden appeared caught off guard when he was asked by a reporter about the possibility of such payments, saying the notion was “garbage” and the payments were “not going to happen.”

But the next day, White House spokeswoman Karine Jean-Pierre said Biden was fine with the idea of monetary compensation. He had been reacting only to the dollar amount, which he found excessive, she said.

The president echoed that sentiment two days later. Biden said that separated families “deserve some kind of compensation” and that “the number is what I was referring to.”

Those exchanges highlight just how confounding immigration has become for Biden. He took over from a president who vowed to ban Muslims from entering the United States, promised to build a border wall and referred to immigrants’ countries of origin with a vulgar phrase. But while Biden has dramatically softened Trump’s rhetoric, reversing his policies has been harder.

White House officials say Biden has charted a sharply different path from Trump, citing his reversal of the ban on travelers from some Muslim-majority countries, his order that agencies stop using terms such as “illegal alien,” the relaxation of enforcement tactics inside the United States and the creation of the task force to reunite separated families.

But immigration activists say other Biden moves show a harder-line approach that in some cases extends Trump policies, such as the continued use of a public health order to expel undocumented immigrants from the border, including to nations in turmoil, such as Haiti. They also note that the administration has restored and expanded Trump’s “Remain in Mexico” program for asylum seekers — although Biden did try to end the program before he was ordered by a federal court to restart it.

Haitian migrants thought Biden would welcome them. Now deported, they have one mission: Leave again.

To many conservatives, meanwhile, it is outrageous that the United States would pay big sums to people who, as they see it, caused their own problems by trying to enter the country illegally.

“It is unconscionable that the Biden Administration would have considered this astronomical payout that was an insult to all hardworking Americans who will subsequently be funding these large settlements with their hard-earned tax dollars,” Tillis said in his statement last month.

And liberals are equally upset by the notion that the government could seize someone’s children, then neglect to do right by them, particularly when some parents were never ultimately charged with a crime.

“It’s just deeply disappointing,” Castro said. “It seems as though the administration is operating out of fear of the politics of this instead of operating based on the values that we share as Democrats.”

Now that the talks have stalled, those politics are set to burst into the open again.

On Dec. 16, three of the families’ attorneys said the Justice Department had notified them that the negotiations were over.

“We would like to continue the settlement negotiations. The government broke them off,” said Lee Gelernt, an attorney with the American Civil Liberties Union who is helping the families. “There was no offer on the table. We would be happy to continue talking with the government, but not if it’s just going to be dragging us along for months again and wasting time.”

The Justice Department, while confirming that a deal was not in hand, framed it differently.

“While the parties have been unable to reach a global settlement agreement at this time, we remain committed to engaging with the plaintiffs and to bringing justice to the victims of this abhorrent policy,” the department said right after the settlement talks broke down. The Justice Department declined this week to comment further.

Now the administration appears likely to find itself in the awkward position of fighting the separated families in court while stressing that it strongly opposes the Trump policy itself.

The government separated more than 5,500 migrant children and teens from their parents at the southwestern border during Trump’s term, according to government estimates. Trump officials created the “zero tolerance” policy that led to the separations because migrant parents were surrendering at the border with their children in hopes of bypassing immigration jails and entering the country.

Under the Trump policy, parents were often taken to court — typically for a quick guilty plea to a petty infraction — while children were dispatched to shelters overseen by the Department of Health and Human Services.

Immigration lawyers argued that some migrants had legitimate asylum claims, such as Ana and her sons, who won their case in immigration court and now live in Florida.

For Jairo, the process meant he was deported to his native Guatemala in January 2018. He expected officials to send his daughter Beatriz soon afterward, according to the lawsuit he joined, but she did not arrive for five months. When she did, she was no longer fluent in Mam, the Mayan language that her mother speaks.

Nick Miroff in Washington and Kevin Sieff in Mexico City contributed to this report.

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