A recent court filing shows that attorneys from the Department of Justice of President Joe Biden are still defending the actions of the Trump administration, which resulted in thousands of migrants being separated from their parents on the U.S.Mexico border. They also argued that the separations occurred because of “perceived humane considerations.”
This argument is in stark contrast to Biden’s previous criticism of separations, which he called “criminal.”
The Department of Justice, in its fight against five asylum seekers who are suing for the trauma that they claim they and their children have suffered due to the separation policy has also questioned whether the families can pursue monetary damages under the Federal Tort Claims Act which allows individuals the right to sue when they suffer injuries as a result of federal officers’ illegal conduct.
In a document filed in court last Wednesday, attorneys from the Department of Justice argued that the claims of the mothers were “not cognizable,” under the Federal Tort Claims Act (also known as FTCA). The attorneys also justified the immigration enforcement actions of some Trump administration officials by saying that the U.S. Government has plenty of discretion in deciding how to regulate migration.
Officials said that the separations were part Trump’s “zero tolerance” policy which focused on prosecuting those who illegally crossed the southwest border, as well as the pilot program before it. In 2017 and 2018, more than 5,600 kids were separated from their parents.
The agencies that implemented the policy failed to adequately plan how the children could be reunited their parents. This left hundreds of them separated even after years.
In their filing, the Department of Justice stated that former Trump Homeland Security Secretary Kristjen Nielson’s claim to have signed the memo in May 2018, directing immigration agents not to prosecute migrant parents, and thus separating families, was not to “inflict harm” but rather to “further policy objectives related to immigration enforcement”. This made the Department immune from legal challenges, according to the filing.
DOJ: “The immigration enforcement objectives cited are border security, allocation and resources and perceived humanitarian concerns.”
The argument appears to ignore statements made by officials of the Trump administration about using family separations as a way to ” discourage” migrants from seeking asylum in America.
The Department also stated that the families who are suing are trying circumventing the government’s immunity by basing “their separations, and not law enforcement action” as the basis of their claims.
The five mothers seeking asylum and their children were among the many migrant families that have filed almost 30 lawsuits against the federal government to seek monetary damages for the treatment they received under the policy of family separation.
“Seeking to minimise the unthinkable”
A task force within the Department of Homeland Security (which is responsible for immigration enforcement) works to reunite any remaining children with parents. Around 700 families have been reunited in the U.S., but many more are still separated.
In other FTCA lawsuits, the Department of Justice has made similar arguments. The initial court filing also highlighted Biden’s opposition to the policy, but this hasn’t prevented his administration from fighting families in court. Advocates are outraged.
Lee Gelernt had some harsh words to say after the recent Justice Department filing. He is the deputy director and lead attorney of the Immigrant Civil Rights Project at the American Civil Liberty Union, which ended Trump’s immigration policy.
Gelernt stated, “I believe the Biden administration is going to regret not only defending the lawsuits but also trying to minimize the damage that was done to these children.”
The Young Center for Immigrant Children’s Rights posted on Twitter that “It’s appalling to watch the Biden administration defend the most egregious of human rights violations.”
Attorneys who represent the migrant family in FTCA cases refused to comment.
The Justice Department announced in late April that it had settled a lawsuit with a parent who was separated, but no specifics were released.
The president, high-ranking officials from the Department of Justice, and the Department of Homeland Security have all made statements that seem to contradict the arguments of Biden’s Department of Justice.
Biden, as a presidential candidate, called the separations that Trump made deliberate “criminal” et “abhorrent.”
In his confirmation hearings Attorney General Merrick G. Garland called the policy a “shameful policy” and said he could “imagine nothing worse”. Homeland Security Secretary Alejandro Majorkas described the policy as “cruel, inhumane and cruel.”
The White House, Department of Homeland Security and NBC News declined to respond to questions regarding the filing last week. They referred NBC News to Department of Justice.
The Department of Justice refused to comment on recent filings citing pending litigation.
They declined to comment on why the Department is still fighting families in court despite senior administration officials’ comments. However, they referred NBC News back to a statement made by the agency in 2021 that stated, “While parties have not been able to reach a global agreement at this point, we remain dedicated to engaging with plaintiffs and bringing justice for the victims of this abhorrent practice.”
court efforts in 2021 to reach a settlement for families were prompted by the numerous lawsuits filed against the federal government by separated families. Each affected family was initially set to receive hundreds of thousands in damages. Later that year, however, the Biden Administration walked away.
Biden publicly criticized settlement amounts after a Fox News reporter asked him a question. The Department of Justice lawyers first tried to reduce the amount of money paid to families, before they walked away. This was despite the fact that the president had expressed his support for the settlement.
Biden told a press conference at the time that “you deserve compensation no matter what circumstances.” “I have no idea what that will be.”