The Moral and Legal Obligation to Provide Justice and Restitution to Forcibly Separated Families

January 5, 2022 by Francesco Arreaga

On October 28, 2021, the Wall Street Journal reported that the U.S. Department of Justice (DOJ), U.S. Department of Homeland Security (DHS), and U.S. Department of Health and Human Services (HHS) were considering a $450,000 settlement amount for each person who suffered under the Trump administration’s family separation policy. The news was immediately met with disdain from Republican lawmakers. Republican Senators wrote a letter to President Biden erroneously characterizing these settlement payments as “rewarding illegal immigration.” Republicans in the U.S. House of Representatives proceeded to introduce a bill prohibiting the Justice Department from entering into “settlements arising out of certain violations of the immigration laws.” Senate Republicans introduced an amendment to the National Defense Authorization Act for Fiscal Year 2022, to block the Biden administration from making these settlement payments.

On December 16, 2021, DOJ withdrew from settlement negotiations with attorneys representing parents and children who were forcibly separated under the Trump administration. Lee Gelernt, an attorney with the ACLU who represents forcibly separated families, expressed that DOJ “will now be in court not just defending the United States but also the individual federal officials responsible for family separation.”

The conversation surrounding these settlement negotiations seems to completely ignore the experiences of children and parents who were victimized by the federal government under the forced family separation policy. It casts aside the stories of trauma, pain, abuse, emotional distress, and what Physicians for Human Rights has labeled “torture.” In fact, the response by some to cast restitution payments as “rewards” or frame them as encouraging lawlessness only serves to add to the trauma inflicted on children and parents who were forcibly separated at the border by blaming them for what they endured.

Some people in government and in society at large may want to move on from these dark episodes in our country’s history and forget about all of the children and parents whose basic human rights were tarnished. This kind of response dooms our country to repeat these atrocities in the future, undermines the rule of law by not providing accountability for unlawful human rights abuses, and fails to provide any measure of justice to children and parents who sought refuge in our country.

This article portrays DOJ’s role in forcibly separating families, the judiciary’s instrumental decision to halt the family separation policy, and the gut-wrenching experiences that parents and children endured. I describe a lawsuit where experts in international law and international human rights provide amicus briefs explaining that the Trump administration’s family separation policy constituted torture and crimes against humanity. I conclude by urging members of Congress to provide justice through restitution payments and other means to children and parents who were harmed under the Trump administration’s draconian family separation policy.

I. DOJ’s Role In Forcibly Separating Families

In July 2017, DOJ began a “pilot program” in Texas as a prelude to the family separation policy. Government officials forcibly took children away from their parents, who were detained after crossing the border, and designated the children as “unaccompanied minors” despite the fact that they had arrived with their parents. For example, reports indicate that a mother named Jocelyn sought asylum in August 2017 but was prosecuted for “illegal entry.” Jocelyn’s son was forcibly separated from her and sent to a shelter in Chicago. It took about nine months for Jocelyn to be reunited with her son.

The practice of family separation employed by this pilot program was then nationalized when Attorney General Jeff Sessions unveiled the zero tolerance policy. The 2021 report by the Office of the Inspector General at DOJ explains that this policy was a “change in long-standing DOJ and DHS practice” because previously the government placed the “family unit in administrative deportation proceedings” to prevent the separation of children from their parents. The Inspector General also found that the Attorney General proceeded with the zero tolerance policy even though there was evidence of the “government’s inability in many cases to identify the whereabouts of separated children” in the 2017 pilot program.

During a conference call on May 11, 2018, Attorney General Sessions told multiple US Attorneys, “we need to take away children.” Deputy Attorney General Rod Rosenstein informed US attorneys that they “could not decline to prosecute cases based on the age of the children who would be separated from their parents.” This meant that toddlers who may not be able to speak yet, “know their own names or their parents’ names,” would be ripped from their parents arms. This is in fact what ended up happening.

Tender Age Facilities Housing Separated Toddlers

On June 20, 2018, AP News reported that “tender age” facilities had been set up to “detain babies and other children who [had] been forcibly separated from their parents at the U.S.-Mexico border.” Attorneys and doctors who visited these facilities found children who had no idea where their parents were located and were experiencing trauma—“hysterical, crying and acting out.”

ProPublica obtained audio from inside a facility where separated children were being housed. The children “sound like they’re crying so hard, they can barely breathe.” The audio recording captured children crying out, “Daddy! Daddy! Mommy!” Shockingly, a Border Patrol agent is heard saying in the midst of children crying out loud for their parents, “Well, we have an orchestra here, right? What we’re missing is a conductor.”

II. The Judiciary Halts the Family Separation Policy

 On March 9, 2018, the ACLU filed a class action lawsuit against U.S. Immigration and Customs Enforcement (ICE) on behalf of asylum seeking parents who were forcibly separated from their children. On June 6, 2018, the federal district court issued an order denying in part the government’s motion to dismiss the case and found that “government actors responsible for the ‘care and custody’ of migrant children have, in fact, become their persecutors.” The allegations of forced family separation “sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child.” Furthermore, the court emphasized that such conduct “is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue ‘shocks the conscience’ and violates Plaintiffs’ constitutional right to family integrity.”

On June 26, 2018, U.S. District Court Judge Dana Sabraw issued a preliminary injunction requiring that children be reunited with their parents and prohibiting future family separations. The court found that the practice of forcibly separating families at the border was implemented without an effective system of tracking children after they were separated, enabling communication between parents and their children, and reuniting parents with their children. The court noted that the government kept better track of property than of the children it separated, explaining that “under the present system migrant children are not accounted for with the same efficiency and accuracy as property.” In addition, the court described how some parents had already been deported without their children.

Finally, the court noted the long-term irreparable harm that the government caused children and parents through the family separation policy. Evidence shows that traumatic separation from parents causes toxic stress in children and adolescents that impacts their development. Toxic stress “disrupts the development of brain architecture and other organ systems, and increases the risk for stress-related disease and cognitive impairment well into adult years.” Studies show that “children who experience such traumatic events can suffer from symptoms of anxiety and post-traumatic stress disorder, have poorer behavioral and educational outcomes, and experience higher rates of poverty and food insecurity.”

III. Centering the Experiences of Separated Children & Parents

When we think about forced family separation, we cannot truly imagine the pain that the federal government caused countless immigrants seeking safety. Some people in government and society criticize providing these families settlement payments without ever taking a moment to learn about their stories. Below are a few narrations of the pain and suffering that several children and parents endured under the Trump administration’s cruel family separation policy. I urge readers to remember these stories when they go to the ballot box to elect our government leaders and when they make a judgment about whether these families should obtain restitution.

 The Forced Separation of C.M. and Her Son B.M.

On September 19, 2019, attorneys filed a lawsuit against the United States under the Federal Tort Claims Act, on behalf of five mothers and their children who were victims of the family separation policy. This is the story of C.M. and her son B.M., as alleged in the lawsuit.

In 2018, C.M. entered the United States with her then 5-year-old son after fleeing violence in Guatemala. Immigration officers apprehended them and took them to a detention center. These centers are often referred to as a “hielera” or “ice box” because of the freezing temperatures inside. Promptly after arriving at the facility, an immigration officer informed C.M. that she would be separated from her son and deported to Guatemala. The officer laughed at C.M.’s shocked reaction and stated, “Happy Mother’s Day.”

When C.M. was about to be forcibly separated from her son, C.M. begged the immigration officer not to separate her from him because he was 5 years old and only spoke Mam, a Mayan language. C.M. pleaded to be sent back to Guatemala with her son, instead of separated. The immigration officer laughed, made fun of her indigenous accent, and replied “it’s not that easy.”

When C.M. resisted, two immigration officers threatened “to throw her son in a cell without her if she did not let them take him.” C.M. proceeded to assure her son that she would not go back to Guatemala without him. B.M. sobbed and clutched his mother. The immigration officer forcibly pried B.M. away from his mother as he cried and grabbed at her clothes.

C.M. was heartbroken after being separated from her son. She cried constantly, did not sleep, became disoriented, had no appetite, and began suffering from chronic headaches. She relived the trauma of separation every time she watched immigration officers take other children away from their parents at the detention facility. She witnessed fathers crying through the interior window of her cell. A couple of days after being separated from her son, C.M. was allowed to speak with B.M. on the phone for a matter of minutes. B.M. informed C.M. that he did not understand what anyone was saying to him because he did not speak Spanish. He sounded terrified and heartbroken.

B.M. was transported to a shelter in New York and spent his birthday without his mother. C.M. spent her son’s birthday crying. B.M. was placed with a foster care family in New York but was removed from that home after B.M. and another child reported that the foster care mother had hit both of them. No government official informed C.M. that her son was harmed in foster care.

Judge Sabraw’s injunction against the government prohibited them from deporting C.M. without her son. It took two and a half months for C.M. and her son to be reunited. When they were reunited, both C.M. and B.M. sobbed with relief. While on a bus that was transferring them to another detention center, B.M. began crying and was terrified that he would be separated from his mother again. B.M. continues to suffer from symptoms of severe emotional distress. He eats very little, refuses to speak about his time in the New York shelter, and worries that his mother may never come back whenever she leaves the house.

The Death of Marco Antonio Muños As A Consequence of Forced Family Separation

On August 18, 2019, a civil complaint under the Federal Tort Claims Act was filed in the US District Court for the Southern District of Texas. The lawsuit is “believed to be the first of its kind involving family separation and suicide.” This is the story of the forced separation and subsequent death of Mr. Muños, as alleged in the civil complaint.

On May 11, 2018, CBP agents forcibly separated Mr. Muños from his wife and son after apprehending them at the border. When CBP agents notified Mr. Muños that he would be subject to criminal prosecution, he became distraught and mentally unstable. As a result, CBP agents permitted Mr. Muños to briefly reunite with his family. When Mr. Muños embraced his three year old son, he began having a panic attack. CBP agents understood that Mr. Muños was distraught because he did not want to be separated from his family, yet they were determined to employ the zero tolerance policy. CBP agents physically and forcibly pried Mr. Muños’s son from his arms. Mr. Muños’s son and wife watched, horrified, as immigration agents dragged Mr. Muños away from them. Mr. Muños was subsequently placed in a chain-link fenced cage.

On May 12, 2018, Mr. Muños was transferred to a county jail. Inside the transport vehicle, Mr. Muños screamed and kicked at the windows. CBP agents knew that Mr. Muños was in desperate need of psychiatric and medical care as a result of the forced separation but they did not take him to a medical facility. Mr. Muños was visibly erratic and agitated upon arriving at the jail. He was placed in a padded cell but officers failed to check in on Mr. Muños at appropriate intervals to prevent his death. Mr. Muños used a long-sleeved article of clothing and died by suicide due to      asphyxiation.

The Horrifying Experience of Wilbur and His Son Wilfredo in U.S. Custody – Trauma, Illness, Sexual Assault, and Forced Separation

On June 10, 2021, a civil complaint under the Federal Tort Claims Act was filed in the US District Court for the Northern District of California. The lawsuit against the U.S. government seeks damages for the harm immigration officials inflicted on three families who were separated at the U.S.-Mexico Border under the family separation policy. This is the story of Wilbur and his son Wilfredo, as alleged in the civil complaint.

Wilbur and his eleven-years-old son Wilfredo fled El Salvador to seek asylum in the United States. After spending days in the desert in the hopes of reaching safety in the United States, Wilbur and Wilfredo were robbed by a group of men who threatened to kill them. Wilbur and his son continued wandering in the desert after this altercation and surrendered to CBP officers when they reached a fenced area.

CBP officials took Wilbur and Wilfredo to a detention facility where they were placed in a filthy and cold cell, packed tightly with other fathers and their children. Wilbur and his son were not offered the opportunity to shower or to change into fresh clothes. They were provided little food and water. Moreover, Wilbur’s feet were deteriorating as his blistered skin leaked blood and pus.

Immigration officers informed parents that their children would be taken to a separate cell but did not tell them how long the separation would last. Wilfredo’s heart raced as he heard this news, his breath became heavy, and he clung to his father. Wilfredo was terrified, began to cry, and told his father that he did not want to leave. Wilbur consoled his son and told him that they would only be apart for a short time, as he could not imagine at the time that he would actually be separated for about two months.

When Wilbur and other men asked for information about their children, they were insulted and threatened with punishment for making eye contact. Officers also asked the men in the cell why they were “trying to invade the United States.” The infection in Wilbur’s foot had started to spread upwards. Although Wilbur asked for medical attention, he did not receive it. Wilbur was transferred to another detention facility where several days passed until he finally received a cursory medical check. During this checkup, Wilbur explained that he was in constant pain throughout his legs, and that he could not walk without excruciating pain. The person performing the examination, however, did not even respond when Wilbur spoke of his injuries.

Wilbur was then transferred to a third detention facility where a nurse informed him that he needed antibiotics. By this time, Wilbur’s legs and feet were discolored and yellow. Wilbur also experienced the physical manifestations of pain, stress, and trauma caused by the forced separation of his son. He was unable to sleep, experienced dry heaving, and felt a disorienting sensation as if the world was not real. Wilbur also developed a throat infection after being forced to sleep directly under an air conditioning vent.

ICE officers informed Wilbur and other detained men that if they agreed to be deported, they would be reunited with their children at the airport. Wilbur was terrified to return to El Salvador and he did not want to sign the paperwork until he was reunited with his son. Out of desperation, Wilbur called friends and asked for help finding his son. Without any help from the U.S. government, Wilbur eventually located his son at another detention center. Wilbur was then informed that his son had been processed as though he had entered the country alone. The detention center had no information indicating that Wilbur was Wilfredo’s father or that they had entered the United States together.

When Wilfredo was separated from his father, he was not provided any information about his father or the opportunity to speak with him for weeks. A few days after entering Office of Refugee Resettlement custody, Wilfredo was sexually assaulted by another detained child. Wilfredo reported the assault to the facility’s personnel but they failed to provide him with appropriate follow-up support or counseling. In addition, they did not inform Wilfredo’s father of the assault.

On a separate occasion at the facility, Wilfredo was shoved to the ground by another child and subsequently hit with blunt force to the head. Wilfredo at one point ran to the gate of the facility and told personnel that he needed to escape. Knowing all that Wilfredo had endured, personnel did not offer him counseling, therapy, or mental health care services.

Wilbur and Wilfredo were eventually reunited, but even reunification efforts caused both of them trauma. Immigration officials loaded Wilbur into a bus and left him stranded at a bus station in Arizona without telling him how to reach California, where his family was waiting for him. He was left stranded, filthy, and without food or water. In addition, officers failed to inform Wilbur that his son would be arriving at that bus station to meet him. A good Samaritan who spoke Spanish lent Wilbur his phone so he could get in touch with his family and purchase a bus ticket. Wilbur left Arizona on a bus before his son arrived. When federal agents arrived at the bus station with Wilfredo and Wilbur was nowhere to be seen, Wilfredo was heartbroken, cried, refused food, and could not sleep. Wilfredo was later sent on an airplane to San Francisco, where he reunited with his father.

Since the reunification, both Wilfredo and Wilbur have experienced long-lasting trauma. Wilfredo fears being kidnapped, at night his body often shakes as he tries to go to sleep, he grinds his teeth, and wakes up afraid. He struggles to make eye contact or express himself, and feels anxious when he needs to attend classes at school. Wilfredo has needed psychological assistance and therapy due to the sexual abuse and forced separation. Wilbur experiences stomach pains, loss of appetite, dry-heaving, and nightmares. He received psychological counseling and has been prescribed medication. In addition, Wilbur continues to experience pain after standing or walking, as a result of the infection on his feet that went untreated for weeks while in detention. This has limited the type of work he can do.

 IV. Forced Family Separation as A Crime Against Humanity and Torture

In 2018, the Center for Constitutional Rights filed a lawsuit to reunite a father (Mr. C.) whose nineteen-month-old son (D.J.C.V.) was forcibly taken from him under the family separation policy. The father and son had arrived in the United States seeking asylum after fleeing from deadly persecution in Honduras. According to the civil complaint, the federal government separated them for five and a half months and provided the father with limited information about his child’s whereabouts or well-being. The toddler was separated from his father for about a quarter of his life, turned two-years-old while in detention, and did not seem to recognize his father when they reunited. Mr. C. experienced severe chest pains, depression, suicidal thoughts, and anxiety throughout the forced separation from his son. When a federal judge ordered the immediate family reunification, he characterized forced separation of a child and parent as “the most cruel thing you can imagine.”

The ongoing litigation in this case is different from other cases involving forced family separation because they involve allegations that the federal government violated domestic and international law. The father and his son are seeking justice under both the Federal Tort Claims Act and 28 U.S.C. §1350, which provides redress for torts “committed in violation of the law of nations or a treaty of the United States.” The civil complaint argues that the acts committed by U.S. officers and officials through forced family separation constitute torture, crime against humanity of persecution, and crime against humanity of inhumane acts. In this case, seven amicus briefs were filed to support Mr. C. and his son D.J.C.V. in their opposition to the government’s motion to dismiss the lawsuit.

A brief from professors and doctors with expertise on international human rights law and the mental health pathology caused by trauma, concludes that “the United States’s practice of family separation violates its obligations to refrain from committing torture and violates asylum seekers’ rights to be free from torture, as guaranteed under the CAT [Convention Against Torture] and U.S. law.

A brief by various international human rights organizations and international law scholars delineates how “the family separation policy and the conduct underlying its implementation amount to the crime against humanity of persecution.” The brief explains that the “Family Separation Policy discriminated against non-white migrants from Central America, specifically Guatemala, El Salvador and Honduras, severely deprived those migrants of internationally recognized rights and permitted the commission of persecutory acts on a widespread and systematic scale.” The brief finds that forced separation of parents and children under the family separation policy “was a grave violation of the rights of the child” and may be found to constitute “torture, imprisonment, deportation and transfer of populations, and other inhumane acts.”

Constitutional law scholars Dean Erwin Chemerinsky, Professor Susan Bandes, Professor Martin Flaherty, Professor Eric Freedman, and Professor Burt Neuborne argue in their brief that “the United States government does not enjoy sovereign immunity from claims in federal court that it has violated jus cogens norms—in this case, by committing torture, persecution, and inhumane acts.”

A brief was also filed on behalf of leading scholars with expertise in family law and “the anti-slavery traditions and antebellum practice of forced separation of enslaved families that formed the foundation upon which the Thirteenth and Fourteenth Amendments were drafted and ratified.” The brief explains how “forced family separation was a central tenet of slavery in the United States” and “securing the right of family integrity was an explicit objective of the Reconstruction Congress” For example, the brief cites how “Moses Grandy wrote in 1844 that his mother was ‘frantic with grief’ as she endeavored to protect her children from the slave market, often hiding them in the woods.” The brief further states that “like the families forcibly torn apart at historical slave markets, Mr. C. and his son D.J.C.V. live each day with the emotional trauma of their family relationship, their life- and spirit-sustaining bond, broken by an authority with no regard for their natural rights, freedoms or affections, nor their profound mutual dependence.”

V. Congress Should Provide Justice to Children and Parents Who Were Forcibly Separated

To this day, children and parents who endured so much pain and suffering as they were forcibly separated by federal officers continue to experience the long lasting trauma of this horrifying experience. In fact, thousands of children are still separated from their parents, more than three years after the family separation policy ended. On October 7, 2021, Michelle Brane, the head of the Biden administration’s Interagency Task Force on the Reunification of Families, stated in an interview that they estimate that “somewhere between 1,000, 1,500, maybe more [children] remain separated.”

Government officials who participated in the formulation or implementation of the family separation policy have yet to be held personally accountable for their actions. On the contrary, a report by Slate describes how “the architects of Trump’s family separation policy have landed on their feet,” enjoying “positions of power and prestige.” Considering how there is little to no personal accountability for persons who engaged in a federal policy that international human rights experts believe constituted “torture” and a “crime against humanity,” the very least that members of the U.S. Congress can do is provide separated children and parents with some measure of justice.

Congress should engage in the following oversight and legislative actions:

1) Conduct oversight over litigation efforts by forcibly separated families and ensure that all children and parents have access to restitution payments.

So far there have been about 940 claims filed by separated families, but reports indicate that more than 5,600 children were separated from their parents. All children and parents who were forcibly separated under the family separation policy should be eligible for restitution payments, regardless of whether they filed a claim. The federal government already has experience managing such amounts of restitution payments.

For example, the Japanese American Claims Act of 1948 provided Japanese Americans compensation for losses of real and personal property, as a result of the federal government forcibly taking them from their homes and placing them in internment camps. The program was “administered by the Justice Department, which set a $100,000,000 limit on the total claims. Over $36,974,240 was awarded.”

2) Provide children and parents who were forcibly separated a pathway to remain in the United States. Representative Joaquin Castro and Senator Richard Blumenthal have already introduced the Families Belong Together Act to accomplish this.

3) Provide an official government apology to every family that was forcibly separated by the federal government. Such an apology was provided to Japanese Americans for their forced internment during WWII through the Civil Liberties Act of 1988.

4) Fund mental health care services for children and parents who were forcibly separated. A study by Physicians for Human Rights evaluated several adults and children who were forcibly separated and found that “most individuals (both adults and children) met diagnostic criteria for at least one mental health condition, such as post-traumatic stress disorder, major depressive disorder, or generalized anxiety disorder.” Funding mental health care services will provide children and parents the help they need to overcome the long-lasting psychological effects of the family separation policy.

5)  Enact legislation that upholds human rights in immigration detention facilities. The experiences that children and parents endured while in detention for seeking asylum, as narrated in an earlier section of this article, demonstrate that greater oversight combined with legislative action is needed to prevent this from occurring again. Children’s civil rights have been infringed to a point where a federal judge in 2018 found that “U.S. government officials [had] been giving psychotropic medication to migrant children at a Texas facility without first seeking the consent of their parents or guardians, in violation of state child welfare laws.”

Senators have already proposed the Stop Cruelty to Migrant Children Act. Legislative text should ensure that the human rights of children and adults are not violated while in detention and that accountability measures are in place if such human rights violations occur.

6) End private for-profit immigration detention facilities. A 2019 report by the Center for American Progress, indicates that a “record number of immigrants have died in detention.” Of 27 immigrants who died in detention since 2017, “21 have died in facilities that are owned or operated by for-profit prison companies.” Members of Congress have already introduced the Dignity for Detained Immigrants Act to end the use of private detention facilities and protect the human rights of immigrants.

7) Enact similar oversight and legislative action, as outlined above, to provide justice to immigrant women who filed a class action lawsuit alleging that they were subjected to “non-consensual, medically unindicated, and/or invasive gynecological procedures” while detained in ICE custody. Wendy Dowe recently published an article on Ms. Magazine, detailing the human rights abuses she was subjected to at the Irwin County Detention Center, her subsequent deportation to Jamaica, and the continued trauma she endures. She writes that this is about “more than reparations,” it is “about repairing the soul of America, so it can truly be a democratic haven and a champion of human rights.”

VI. Conclusion

No amount of money or legislative action will ever be able to fully redress the emotional, psychological, or physical harm caused to children and parents by the family separation policy. But the legislative actions proposed in this article would bring some level of justice to these families and hopefully prevent similar atrocities from occurring in the future.

It is up to us to ensure that the human rights abuses sustained during the Trump administration never be repeated again. Our country must once and for all truly represent the ideals that Emma Lazarus embodied in her poem, “The New Colossus,” which is engraved on a plaque in the pedestal of the Statue of Liberty. The poem shows the Statue of Liberty as a “Mother of Exiles” who declares, “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”