'Harm was the point': 4 migrant parents sue over Trump policy that separated families

Four migrant parents have filed a federal lawsuit in Arizona, arguing a Trump administration policy of intentionally separating families who crossed the U.S.-Mexico border was harmful and traumatic

Three mothers and a father all crossed into the U.S. near Yuma during the summer of 2018 and were detained apart from their children — ranging from 6 to 14 years old — as part of the administration's Family Separation Policy. During a 35-day period, U.S. officials took at least 2,342 children from their parents after then-Attorney General Jeff Sessions announced the program in April 2018.

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."

When Sessions announced the "zero tolerance" program on April 6, 2018, he justified the program 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," he said.

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."

Two law firms, one based in Washington D.C. and the other in Phoenix, filed the latest lawsuit on Monday and seek "compensatory damages" for the families.

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, the Trump rescinded the policy on June 20, 2018.

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, some separated families are filing individual claims and seeking damages.

"Each of the four plaintiff families were separated with no notice, no information, and no plan for reunification," wrote the attorneys.

"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."

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

"Federal officials at the highest levels repeatedly and publicly confirmed that the Family Separation Policy was designed to inflict trauma in order to deter future asylum seekers from coming to the United States," they wrote.

The Tucson Sentinel sent a request for comment from Homeland Security officials, but did not receive a response. However, in previous cases, the agency and its various component agencies have refused to comment on pending litigation.

'But I still feel broken inside'

Among the families is M.S.E., who fled her home in Mazatenango, Guatemala, with her 14-year-old son, identified in court records as J.M. They crossed into the U.S. in May 2018 near Yuma and were taken into custody by U.S. Border Patrol agents. According to the suit, M.S.E. and her son had a harrowing experience in the agency's custody. An agent who "spoke little Spanish," and berated her in English, questioning at one point if J.M was "really her son."

She and J.M. were packed into a detention cell, often referred to by agents and migrant as a hielera or "icebox" along with "dozens of other people; they could not move without touching someone else," according to the lawsuit.

According to J.M., an agent was frustrated with the computer system which struggled to scan his prints because his hands and fingers were "scraped and wounded" from his journey, and agents shouted instructions in English and "aggressively grabbed his hands and fingers."

The agents brought papers to M.S.E., and demanded she sign them. "Refusing to explain its contents, the officers simply told M.S.E. that she would be deported and that her son would remain in the United States. When she told them that she wanted to take her son with her, the officers told her the decision was not hers to make," according to the lawsuit. "Out of desperation, M.S.E. signed the papers."

Two days later, the agents took J.M. from the cell.

"M.S.E. and J.M. were too far from one another to speak, so J.M. waved goodbye to his mother as the officers led him and the other children out of the facility. M.S.E. and the other mothers were left crying in their cell—with no explanation for why their children were being taken away, where they were going, or how long they would be apart."

Mother and son remained separated for 63 days until they were reunited in late July XXXXX, and they continue to suffer "the physical and psychological impact of their separation," according to the lawsuit. M.S.E. developed diabetes and high blood pressure after the incident, and her son changed "profoundly" and "no longer carried himself like a child." According to lawsuit, J.M. even began cutting himself.

J.M. now 19 "still hurts from the separation. He still remembers it vividly and viscerally: he feels great pain in his chest and throat when he thinks about it."

According to the lawsuit, the young man said "I’m big now so I try to be strong. But I still feel broken inside."

"Indeed, doctors have concluded that many of the children that the government separated from their parents will be seriously impaired for the rest of their lives and experience 'heightened feelings of anxiety and loss,'" the attorneys wrote.

'Cruelty' exceeded 'only by the carelessness of its implementation' 

Trump administration officials "pre-textually justified" the separations arguing the Department of Homeland Security had a "legal obligation to protect the best interests of the child whether that be from human smuggling, drug traffickers, or nefarious actors who knowingly break immigration laws and put minor children at risk." However, "that turned out to be false," the attorneys wrote.

"As implemented, the policy resulted in officials separating all parents from their children, even if the parents were not criminally prosecuted or in criminal custody," they wrote, adding CBP officials "designated every family unit adult who crossed the border between ports of entry as amenable for prosecution and separated the adults and children before any decision was made whether to actually prosecute."

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 that 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.

In May 2018, Jeff Sessions outlined the policy, saying simply: "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," he said.

"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. 

A 2018 lawsuit filed by the ACLU ishowed how Trump administration officials separated a Congolese woman from her 7-year-old daughter after she sought asylum. The ACLU won a nationwide injunction blocking family separations, and showed in a separate lawsuit filed in 2019 the "zero tolerance" policy often fell on asylum seekers, and largely included people from Mexico and Central America.

Even as the policy moved forward, many parents were not only targeted above other entrants but while they were charged with a misdemeanor they often served little to no jail time. Despite this, their children were whisked away to facilities across the U.S. Later uncovered memos show that officials in the Justice Department and DHS hoped that the policy would have "a substantial deterrent effect" on future migration.

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 American Civil Liberties Union. 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 lack of preparation is indefensible on its own, but it is particularly appalling given that the government was on notice of the need to prepare," the plaintiff attorneys wrote. "After the pilot program of separating families had concluded," CBP and the Office of Refugee Resettlement—which is responsible for children who come to the U.S. without parents or guardians—told the administration about the "very deficiencies that eventually plagued the Policy’s implementation."

"Despite these warnings, the government turned a blind eye to the obvious need for critical officer training, a system for tracking families, and a plan for eventual reunification,
exhibiting a deliberate and utter indifference to human suffering generally, and the suffering of vulnerable migrants in its custody," attorneys 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 said it has reunited 100 families separated by the Trump administration, said Homeland Security Secretary Alejandro Mayorkas on Twitter.

In some cases, federal agents removed the parents without their kids intentionally — findings which undermine statements from former Homeland Security Secretary Kirstjen Nielsen, who told Congress that parents chose to leave their children in the U.S.

In a 25-page report, the Department of Homeland Security's Inspector General said that U.S. Immigration and Customs Enforcement deported at least 348 parents separated from their children without documenting whether parents wanted to leave their children in the U.S. The agency's policy left "significant discretion" to individual field offices, the OIG said, and only required ICE to allow parents to coordinate their travel with children. In some cases, parents were even removed without their children after they wrote letters asking to be deported with their kids and consulate offices attempted to help.

"In the end, despite tens of thousands of hours and millions of dollars, the Family Separation Policy failed to deter asylum-seekers from coming to the United States," the attorneys wrote. "But it did accomplish one of the Administration’s goals: inflicting untold physical, mental, and emotional harm on countless children and parents—including plaintiffs."