Immigration Law

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Eight immigrant families separated at the border last year under a rescinded Trump administration policy have filed claims for millions in damages, the Associated Press reported Monday.

In a claim filed with the Department of Health and Human Services, the first step toward suing the federal government over the Federal Tort Claims Act, the families say government employees misled them and made fun of them while taking their children away. They also say the children remain traumatized months after being reunited with their parents. They are represented by the American Immigration Council—which issued a press release about the claim Monday—the National Immigrant Justice Center and the law firms Arnold & Porter and Kairys, Rudovsky, Messing, Feinberg & Lin.

The government began separating immigrant families, largely from Central America, in late 2017 and early 2018. Originally, then-Attorney General Jeff Sessions announced it as a by-product of the Department of Justice’s zero tolerance policy for people who cross the border without authorization, which under federal law is a misdemeanor. The families had to be separated to prosecute the parents, authorities said.

But the claim filed with the HHS alleges that the real motivation was always to discourage immigration, particularly immigration from the Central American asylum-seekers who have appeared at the border in large numbers since their home countries became plagued with unchecked street violence. Citing federal government documents and public statements by officials, the families say the government repeatedly said the purpose of the policy was deterrence, even though it knew the policy would hurt children and families.

“The trauma inflicted by the family separation policy was entirely intentional
and premediated,” the claim says. “This point cannot be overstated: The most senior members of the U.S. government intentionally chose to cause parents and small children extraordinary pain and suffering in order to accomplish their policy objectives.”

The claim details the suffering of a Guatemalan mother called C.M. in the filing, and her then-5-year-old son, B.M. They arrived in Arizona in early May 2018 and were taken to a U.S. Customs and Border Protection holding cell. A guard there told C.M. that the government would take her son and deport her and then mockingly wished her a happy Mother’s Day. Less than two days later, at 5 a.m., immigration officers took B.M. from C.M., prying his hands off her by force and unmoved by her pleas that the child couldn’t be separated from her because he only spoke Mam, an indigenous language. An officer responded by making fun of her accent.

C.M. became distraught after the separation, crying constantly for more than two weeks and not eating or sleeping enough. She spoke to her son via telephone several times in the roughly 10 weeks that they were separated. B.M. cried during many of the phone calls and repeatedly asked when they could go home. He also ate very little and was constantly afraid. They were reunited in late July and detained in a Texas family detention center, which released them in November. Nevertheless, B.M. had nightmares in family detention, still doesn’t have much appetite, refuses to talk about his time in the shelter, and is afraid when his mother leaves the house. When reunited, he told his mother he thought she brought him to the United States to give him away.

Citing Ms. L v. ICE, the lead lawsuit on family separations, the claim argues that the government’s family separation policy—and its failure to make any plan for reuniting them—violates the families’ due process rights to family integrity under the Fifth Amendment. According to the American Immigration Council press release, each family seeks $3 million in damages.

“These children and their parents have experienced horrific, life-altering trauma that was intentionally inflicted on them by our government,” said Stanton Jones, a partner at Arnold & Porter. “No amount of money can undo the damage, … but the government must be held accountable for the impact of its policies.”

Under the Federal Tort Claims Act, the government has six months to respond before the plaintiffs may sue. A spokesperson for the HHS declined to comment on the claims but said the HHS had no role in the apprehension and initial detention decisions.

At the ABA’s recent midyear meeting, the House of Delegates voted to condemn the zero tolerance policy and the mass hearings it has led to with Resolution 109A.

See also:

ABAJournal.com: “Asylum-seekers whose children were taken away may get another chance under DOJ settlement”

ABAJournal.com: “US can’t count or track all separated immigrant children, but it’s thousands more than reported”