Attorneys from President Joe Biden’s Department of Justice are still defending actions from the Trump administration that resulted in the forced separation of thousands of migrant children from their parents at the U.S.-Mexico border — including the argument that the separations were done out of “perceived humanitarian considerations,” a recent court filing shows.
The argument shows a stark contrast with Biden’s past criticisms of the separations as “criminal.”
In fighting back against five asylum-seeking mothers who are suing the federal government for the trauma they say they and their children suffered because of the separation policy, the Department of Justice has also questioned the families’ ability to seek monetary damages through the Federal Tort Claims Act, which allows individuals to sue for injuries resulting from federal officers’ unlawful conduct.
Attorneys from the Department of Justice argued in a court document filed last Wednesday that the mothers’ claims were “not cognizable” under the Federal Tort Claims Act, also known as FTCA. They also justified immigration enforcement actions from some Trump administration officials, saying the U.S. government has ample discretion when deciding how to regulate immigration.
The separations were part of Trump’s broader “zero-tolerance” policy, which focused on prosecuting anyone who illegally crossing the southwest border as well as a pilot program that preceded it, officials said at the time. It resulted in the separation of more than 5,600 children from their parents in 2017 and 2018.
The agencies implementing the policy did not adequately plan on how the children would be reunited with their parents, leaving hundreds of them still separated years later.
The Department of Justice said in their filing that when former Trump Homeland Security Secretary Kristjen Nielsen claimed to have signed a memo in May 2018 directing immigration agents to refer migrant parents for prosecution, and thereby separating families, her intention was not “to use separations of parents and children to inflict harm,” but instead it was “in furtherance of policy objectives relating to immigration enforcement.” That made the department immune to legal challenges under the law, according to the filing.
The immigration enforcement objectives cited were “border security, allocation of personnel and resources, and perceived humanitarian considerations,” the DOJ stated.
The argument seems to gloss over statements made by officials in the Trump administration discussing using family separations to “deter” migrant families from seeking asylum in the U.S.
The department also said that the families suing are trying to circumvent the government’s legal immunity by basing their claims “upon their separations, not law enforcement actions.”
The five asylum-seeking mothers and their children are among multiple migrant families who have filed nearly 30 lawsuits against the federal government seeking monetary damages through FTCA for the way they were treated under the family separation policy.
‘Seeking to minimize the unthinkable’
The Department of Homeland Security, which is in charge of immigration enforcement, has a task force working to reunite the remaining children with their parents. It has reunited around 700 families in the U.S, but hundreds more remain separated.
The Department of Justice has used similar arguments in other FTCA lawsuits. It also highlighted Biden’s opposition to the policy in an initial court filing, but that hasn’t stopped his administration from fighting the families in court, leaving advocates outraged.
Lee Gelernt, the deputy director of the American Civil Liberty Union’s Immigrant Civil Rights Project and the lead lawyer in the case that ended Trump’s policy, had harsh words after the recent Justice Department filing.
“I think the Biden administration will come to regret not only defending these lawsuits, but seeking to minimize the unthinkable damage done to these little children,” Gelernt said.
The nonprofit Young Center for Immigrant Children’s Rights tweeted on Tuesday, “It is appalling to see the Biden administration defend one of the most egregious human rights violations in recent memory.”
Attorneys representing the migrant families in FTCA cases declined to comment.
In late April, the Justice Department said it had reached a settlement with a separated parent in a different lawsuit, but specifics have not yet been released.
The arguments from Biden’s Department of Justice seem to contradict statements from the president and high-ranking officials at the Department of Justice and the Department of Homeland Security.
As a candidate, Biden described the deliberate separations by Trump as “criminal” and “abhorrent.”
During his confirmation hearings, Attorney General Merrick Garland said that the policy was “shameful” and that he “couldn’t imagine anything worse.” Homeland Security Secretary Alejandro Majorkas called the policy “cruel and inhumane.”
The White House and the Department of Homeland Security declined to answer questions about last week’s filing, referring NBC News to the Department of Justice.
The Department of Justice declined to comment on the recent filings, citing the pending litigation.
In response to why the department is still fighting the families in court considering senior administration officials’ statements, they declined to comment but referred NBC News to a 2021 statement from the agency that said, “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.”
Given the multitude of lawsuits filed by separated families against the federal government, court efforts to reach a global settlement to compensate families emerged in 2021. Each affected family initially stood to received hundreds of thousands of dollars in damages. But later that year, the Biden administration walked away from the negotiations.
They ended after Biden publicly criticized the size of the reported settlements in response to a question from a Fox News reporter. Lawyers from the Department of Justice first pushed to lower the amount paid to the families before walking away entirely, even though the president ultimately voiced his support for a settlement.
“You deserve some kind of compensation, no matter what the circumstance,” Biden said at a news conference back then. “What that will be I have no idea.”
