A federal judge in Arizona ruled late Tuesday that Trump administration officials involved in the 2017-18 policies that separated thousands of immigrant families at the southern border cannot be sued over those policies.
At the same time, the judge, a Trump appointee, denied the federal government’s motion to dismiss a lawsuit seeking damages for families affected by the policies.
The Biden administration has yet to take action against the officials or investigate the Trump administration's application of what it called "zero tolerance," although as a presidential candidate, Joe Biden called the separations “criminal.”
The Justice Department had been in negotiations with lawyers representing separated migrant families, but after word got out that the payments could be as high as $450,000 and Biden denied the figure at a news conference, the talks broke down.
Now, plaintiffs’ attorneys will be able to conduct discovery and move forward with seeking payment for the families.
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The American Civil Liberties Union estimates over 5,000 families were separated from mid-2017 through June 2018 as part of the Trump administration’s “zero tolerance” policy and says about 1,000 could still be separated.
Trump officials, including senior adviser Stephen Miller, Homeland Security Secretary Kirstjen Nielsen, Attorney General Jeff Sessions and White House chief of staff John Kelly, were among those the ACLU and other groups sought to sue on behalf of separated families.
U.S. District Judge John Hinderaker of Arizona said in his opinion that the Supreme Court has places limits on suing executive branch officials to avoid interfering with the authority of other branches. He also said the Trump officials were exercising their powers of prosecutorial discretion within the confines of U.S. immigration law.
The Trump administration ran a pilot program involving family separation in 2017 and then imposed a "zero tolerance" policy along the whole border for several months in 2018. The policy systematically referred all migrants crossing the border illegally for criminal prosecution, regardless of whether they were traveling with their children or had committed no violent crimes. The referrals resulted in thousands of family separations.
Typically, crossing the border illegally on its own is considered only a misdemeanor and is handled in immigration court. Unlike federal court, appearing in immigration court does not require parents to be incarcerated separately from their children.
Lee Gelernt, the lead plaintiffs' attorney in the case for the ACLU, said his side will appeal the part of the ruling that dismissed claims against Trump officials.
“We will appeal that portion of the ruling because there must be accountability through civil actions since the Biden administration has not held hearings or taken other measures to hold officials accountable, despite President Biden calling the family separation practice criminal,” Gelernt said. “In fact, the Biden DOJ has chosen to represent the Trump officials rather than try to hold them accountable.”