Feds settle Arizona lawsuit over Trump-era family separations at border

The federal government will pay $315,000 to a migrant father and his son who were separated during the Trump administration’s disastrous family separations policy, ending one of at least three lawsuits over the policy in Arizona. 

The settlement comes years after the Biden administration blanched at agreeing to give families $450,000 each as part of a wider settlement agreement.

For 35 days during the summer of 2018, U.S. officials took at least 2,342 children from their parents as part of “zero tolerance” policy intended to deter an increasing number of asylum seekers arriving at the U.S.-Mexico border. Years after the program ended, dozens of children remained separated from their parents and the policy spawned dozens of lawsuits across the country.

In Arizona, more than a dozen migrant parents filed three separate lawsuits over family separations, including a man identified only as Eliot, or E.S.M. in court records. 

During that summer, E.S.M. and his his 11-year-old son— identified in court records as Héctor or H.S.S.—crossed into
the U.S. to seek asylum and were detained by U.S. Border Patrol
agents. While E.S.M. was taken to a facility in Eloy, Ariz., his son was
transferred to the Office of Refugee and Resettlement in Mesa and it
would be months before they were reunited.

After they were taken into custody, federal officials “forcibly separated” the father from his son Héctor who “cried and told his father he feared they would never be reunited.” 

“The United States government tore Eliot and Héctor apart pursuant to a cruel and unconstitutional policy: The government intended to inflict terror and harm on them as a means of deterring others from seeking to enter the United States,” wrote Keith Beauchamp, an attorney with the Phoenix-based Coppersmith Brockelman PLC. Beauchamp filed the lawsuit backed by the Southern Poverty Law Center, and the Washington D.C. firm Covington & Burling LLP.

“Héctor and Eliot fled persecution in their home country, only to find it in the very place they sought refuge—the United States of America,” Beauchamp wrote.

As the separations were carried out, many parents were targeted
before other detained entrants and while they were charged with
misdemeanors, they often received little to no jail time. Even so, their
children were whisked away to facilities across the country. Uncovered
memos showed officials in the Justice Department and DHS hoped that the
separations policy would have “a substantial deterrent effect” on future
migration.

These prosecutions fell on everyone, including “those who tried to
exercise their right to seek asylum,” said the American Immigration
Council, which reviewed the Trump’s administration’s policies based on
internal memos and documents published as part of a series of request
filed under the Freedom of Information Act. Along with people who
crossed the U.S.-Mexico border and turned themselves over to Border
Patrol agents, federal officials also sought to prosecute families
“presenting themselves lawfully at a port of entry.”

While the
policy was underway, it was clear migrant parents had little sense of
what happened to their children, and during a hearing in a Tucson court
in early June 2018, a federal judge reprimanded a representative of the
U.S. Attorney’s Office and demanded they locate a man’s son immediately.
Meanwhile, the surge of new illegal entry misdemeanor case stuffed up
the court system in San Diego, and when prosecutors tried to prosecute a
women under “zero tolerance” their case collapsed.

The
separations were met with immediate fury, setting off nationwide
protests including one in Tucson when nearly 400 people lined the
streets of Congress, and another when activists took over former U.S.
Rep. Martha McSally’s office for a “play-date” featuring children and
parents. This accelerated after audio recordings of children sobbing
after their separation from their parents were published.

Stinging from widespread criticism, Trump rescinded the policy on June 20, 2018.

Meanwhile, the slapdash structure of the program
meant federal officials lost track of hundreds of children, in some
cases deporting parents to their home countries while their children
were still in federal hands. A federal watchdog later found officials
at U.S. border crossings failed to report they were holding dozens of families
while CBP “adopted various ad hoc methods to record and track family
separations” but this method “introduced widespread errors.”

When President Joe Biden took office, he signed an executive order creating a “task force” to reunite families.

During
the height of the family separation program, Homeland Security
officials told reporters during a call on June 15, 2018 they removed
1,995 minors from parents or guardians in just six weeks. However, by
June 2021, the task force created by Biden identified at least 3,913
children who were separated under the Trump-era policy.

Of those,
1,786 were reunited with their parents. However, despite his pledge to
reunite families, Biden flinched at providing $450,000 to migrant
families as part of an effort to settle potential lawsuits resulting
from Trump’s actions.

After the collapse of talks, separated families filed individual claims to seek damages.

Last year, the American Civil Liberties Union settled with the Biden administration
as part of a class-action lawsuit over the Trump-era program. As part
of the agreement, the federal government is banned from separating
migrant children from their parents on a widespread basis.

As part of the agreement,
the Biden administration agreed to provide work authorizations, housing
and legal assistance, and medical services for about 4,500 to 5,000
children and their parents. The government also agreed to continue
seeking out families separated during the four years of the Trump
administration from January 2017 through January 2021, funding
reunification efforts and providing a pathway for those families to seek
asylum in the U.S.

As part of the settlement filed in March 2024, E.S.M. and his minor son will
receive $157,500 each for a total of $315,000. The funds for Héctor will
remain in a trust until he turns 18, accord to court records.

‘Harm was the point’

Two other lawsuits— involving nine other parents in total—have reached the settlement stage, however, court records do not show a final agreement.

In one lawsuit, four parents—M.S.E., M.V.A., B.C.O., and U.O.L.— crossed into the U.S. near Yuma during that summer. Like E.S.M., all four parents were detained apart from their children — ranging from 6 to 14 years old — as part of the administration’s Family Separation Policy.

“For weeks, the parents and children were detained separately, sometimes thousands of miles apart. For weeks, the parents and children begged to be reunited. And for weeks, the government —due to a combination of ineptitude and cruelty — refused to provide information on their loved ones’ whereabouts, well-being or whether they would ever see each other again.”

While Trump administration officials argued the program was necessary, and later blamed parts of the federal government for its failures, lawyers representing the families wrote that for the administration “harm was the point.” 

“By publicizing the trauma suffered by these families, the administration hoped to use the policy to deter others from crossing the border,” those harms persist “even after the eventual reunification with a parent or other family.”

The harm from the separation policy was “no accident—it was the government’s goal,” the suit said.

Another lawsuit, involving five parents—including C.M., L.G., M.R., O.A. and V.C.—is also moving toward a settlement.

‘Cruelty of family separation’ exceeded ‘only by the carelessness of its implementation’

The program began in July and November 2017, CBP sought to prosecute the misdemeanor charge of improper entry, including parents who crossed into the U.S. with their children. The agency detained the parents, and separated the children, re-classifying them as unaccompanied minors. During the pilot program, which came to be known as the El Paso Initiative, the agency separated nearly 280 families.

However, despite signs that CBP was fundamentally unable to keep track of the children after they were separated and warnings from social workers at the Office of Refugee Resettlement  children would suffer under the policy, the Trump administration forged ahead, launching the so-called “zero tolerance” policy in 2018, expanding the El Paso Initiative across the entire U.S.-Mexico border.

Then-Attorney General Jeff Sessions announced the “zero
tolerance” program on April 6, 2018 and justified it by calling the
situation on Southwest border “unacceptable.” 

“Congress has
failed to pass effective legislation that serves the national
interest—that closes dangerous loopholes and fully funds a wall along
our southern border. As a result, a crisis has erupted at our Southwest
Border that necessitates an escalated effort to prosecute those who
choose to illegally cross our border,” Sessions said.

“If you cross the border unlawfully—then we will prosecute you. If you
smuggle an illegal alien across the border, then we’ll prosecute you. If
you’re smuggling a child, then we’re going to prosecute you, and that
child will be separated from you, probably, as required by law,” Sessions
said.

Sessions has avoided appearing
in court to defend the program by seeking to quash a subpoena requiring
him to testify as part of a lawsuit over the program in California.

“Administration officials repeatedly insisted family separation was not a ‘policy’ while systemically targeting families to prosecute parents and repeatedly acknowledging in public that the practice of separating families was intended to ‘deter’ migration to the United States,” the AIC wrote. 

Within weeks, the administration faced a massive backlash against the “zero tolerance” policy. Sessions sought to blame court decisions that guide how ICE can deal with migrant children, while former Homeland Security Secretary Kirstjen Nielsen took a different tack, writing on Twitter that DHS did not have a policy that separated families — despite the fact that the family separations were a consequence of the administration’s choice to prosecute asylum-seeking families for illegal entry. She later claimed before Congress that parents chose to leave their children in the U.S.

In June 2018, the Trump administration backtracked, and a federal judge ordered the government to stop separating families as part of a class-action lawsuit launched by the ACLU. From the pilot program in 2017 to mid-2018, as many as 5,500 children were separated from their parents.

Even during the El Paso Initiative, it was clear CBP could not track children after they were separated from their parents—relying on an Microsoft Excel spreadsheet rather than the agency’s databases—the agency forged ahead on the program in 2018.

“The cruelty of family separation was exceeded only by the carelessness of its implementation,” said the American Immigration Council. 

“The government abjectly failed on three fronts: it did not set up a system for tracking separated families; it did not provide an effective method for parents and their children to communicate after separation; and it had no plan for ensuring families could be reunified prior to removal from the United States or to fight their immigration case,” AIC wrote.

The system was so slapdash that despite a court order, the federal government has strained to reunite the families even years afterward. In December 2021, a task force set up by the Biden administration reunited just 100 families separated by the Trump administration.