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Justice Dept. defends Trump family separations in court, citing 'perceived humanitarian considerations'

Despite President Joe Biden's past criticism of the policy, the DOJ stated that the separated families don't have legal standing to sue, angering advocates.
Protesters rally in Los Angeles in 2018 against the forced separation of migrant children from their parents at the U.S.-Mexico border.
Protesters rally in Los Angeles in 2018 against the forced separation of migrant children from their parents at the U.S.-Mexico border.Robyn Beck / AFP via Getty Images file

Attorneys from President Joe Biden's Justice Department are still defending actions from the Trump administration that led to the forced separation of thousands of migrant children from their parents at the U.S.-Mexico border — including the argument that the families were separated 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 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 Justice Department has also questioned the families' ability to seek monetary damages through the Federal Tort Claims Act, which allows people to sue for injuries resulting from federal officers’ unlawful conduct.

Attorneys from the Justice Department argued in a court document filed May 24 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 it decides how to regulate immigration.

The separations were part of Trump’s broader “zero-tolerance” policy, which focused on prosecuting anyone illegally crossing the southwest border, as well as a pilot program that preceded it, officials said at the time. It separated more than 5,600 children from their parents in 2017 and 2018.

The agencies implementing the policy did not adequately plan how the children would be reunited with their parents, leaving hundreds of them still separated years later.

The Justice Department said in its filing that when Trump administration Homeland Security Secretary Kirstjen 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 Justice Department wrote.

The argument seems to gloss over statements made by officials in the Trump administration who discussed using family separations to “deter” migrant families from seeking asylum in the U.S.

The Justice Department also said the families that are 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 how they were treated under the family separation policy.

'Seeking to minimize the unthinkable'

A task force of the Department of Homeland Security, which is in charge of immigration enforcement, is 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 Justice Department 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.

The lead lawyer in the case that ended the Trump administration’s policy, Lee Gelernt, the deputy director of the American Civil Liberty Union’s Immigrant Civil Rights Project, 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 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; specifics have not been released. 

The arguments from Biden’s Justice Department seem to contradict statements from Biden and high-ranking officials at the departments of Justice and Homeland Security.

As a candidate, Biden described the deliberate separations by the Trump administration as “criminal” and “abhorrent.”

At 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 Mayorkas 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 Justice Department, which declined to comment on the recent filings, citing the pending litigation.

Asked why the Justice Department is still fighting the families in court considering senior administration officials' statements, it 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 separated families have filed 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 Justice Department first pushed to lower the amount paid to the families before they walked away entirely, even though Biden ultimately voiced his support for a settlement.

“You deserve some kind of compensation, no matter what the circumstance,” Biden said at a news conference then. “What that will be I have no idea.”

CORRECTION (June 1, 2023, 8:30 p.m. ET): A previous version of this article misspelled the first name of former President Donald Trump’s homeland security secretary. She is Kirstjen Nielsen, not Kristjen. It also misspelled the last name of President Joe Biden’s homeland security secretary. He is Alejandro Mayorkas, not Majorkas. And it misstated when the Justice Department filed a court document. It filed the document May 24, not Wednesday.