Biden admin reaches settlement with ACLU over separated migrant families under Trump

Officials said the negotiations took three years.

October 16, 2023, 12:18 PM

The Biden administration and the American Civil Liberties Union have reached a proposed settlement agreement that, if approved, would provide benefits for thousands of migrant families separated under the Trump administration's controversial "zero tolerance" policy to deter illegal southern border crossings.

Under the proposed agreement, the Justice Department says, new standards would be established to limit migrant family separations in the future.

The settlement would prohibit separations unless there are concerns regarding the wellness of the migrant child, national security issues, medical emergencies or in the case of criminal warrants.

The settlement would also provide continued support services for those who were separated from their families when Trump was president, including covering the cost of medical bills incurred during or because of the separations.

A federal judge will have to review and sign off on the deal, a Department of Justice official said on a conference call with reporters on Monday.

The settlement would remain in effect for six years, according to the DOJ official.

"The agreement also sets forth procedures for keeping track of the whereabouts of separated family members, and ensuring that that information is shared in the limited circumstances where separations will be permitted," the DOJ official said.

The government will cover some housing costs for those who were impacted and will extend parole for those families who are not yet reunified, the official said.

Migrants with a criminal record or who pose national security issues wouldn't qualify for the settlement, according to officials.

"The practice of separating families at the southwest border was shameful," Attorney General Merrick Garland said in a statement. "This agreement will facilitate the reunification of separated families and provide them with critical services to aid in their recovery."

People attend a Caravan for The Children rally at Lafayette Park in front of the White House on May 2, 2022.
Bryan Olin Dozier/AP

The ACLU said that under the settlement, more than 3,900 children and their families would be eligible for temporary relief from future deportation for up to three years, with a chance to renew. Members of those families would also be granted work authorizations.

In total more than 4,000 families, including 290 children who are U.S. citizens, were separated along the southern border under the Trump administration's "zero tolerance" policy, according to a senior administration official, who added that the total changes daily because families continue to register for reunification services that were previously ordered by a federal judge.

"So far, we've contacted, over the past three years, approximately 1,300 families and where we stand now is that over 75% of the originally identified families who were separated have either been reunified or have been provided with the information they need to begin to reunification process," the senior administration official said, noting that 3,000 children were reunited by non-government organizations.

The ACLU estimates that around 700 families have been reunited and it believes up to 1,000 children still remain separated from their parents.

For four months in 2018, the Trump administration separated families along the southern border as a form of deterrence for entering illegally, according to then-Attorney General Jeff Sessions.

The policy, which was officially reversed by President Donald Trump in 2018 under intense criticism, mandated prosecutions for all suspected illegal border crossings, which led to parents being deported while their children stayed in U.S. custody or were placed in foster care.

Lee Gelernt, the ACLU's lead attorney in its legal challenge to the separation policy -- which the ACLU brought in 2018 -- told ABC News that the new agreement includes housing, medical and behavioral health benefits for migrant families dealing with the trauma of being separated from their children.

Officials said the negotiations to settle the suit took three years.

"When I stood up in court in 2018 to challenge this policy, I could not have imagined that we would be here five years later, still dealing with it, that we would have to go around the world to find families," Gelernt said.

President Joe Biden speaks during the Human Rights Campaign National Dinner at the Washington Convention Center in Washington, DC, on October 14, 2023. (Photo by ANDREW CABALLERO-REYNOLDS / AFP)
Andrew Caballero-reynolds/AFP via Getty Images

The ACLU and partner organizations have been working in conjunction with the Biden administration's reunification task force to identify and locate migrant parents who are still searching for their separated children.

The agreement further expands the number of families that will be eligible for humanitarian parole and reunification, meaning that the ACLU and other organizations will be receiving information on separated families that was previously unknown.

"Hopefully there is contact information, but given the way the Trump administration conducted this policy, we're not optimistic. It may mean searches on the ground all over the world again," Gerlernt said.

The ACLU cites the Trump administration's poor record-keeping and hasty separations as some of the reasons migrant parents have been so hard to locate.

Organizations like Al Otro Lado have been undertaking an arduous process of looking for families, sometimes conducting searches on foot in remote villages throughout Central and South America. In other cases, the children were too young to remember critical details about their parents.

The youngest child separated by the Trump administration was 6 months old, Gelernt said.

In 2021, ABC News spoke with Leticia and Yovany, a mother and son who were reunited two years after they said U.S. Border Patrol agents separated them as they tried to submit an asylum claim at the Mexican border in Texas.

They were among the first migrant families subjected to the policy.

Yovany said then that he continued to be traumatized by the separation.

"It was a pain that I still carry with me. It's still hurting me," he said. "I continue living with that fear that I will be separated from her again."