Families once torn apart at border face renewed threat of separation

Seven years ago, the first Trump administration triggered global condemnation when news broke that it was forcibly separating children from their families at the U.S.-Mexico Border. The outcry led the administration to shutter the program, but thousands of families remained shattered.

The American Academy of Pediatrics called the policy “government-sanctioned child abuse.” Physicians who examined statements from many separated parents and children noted that most met the diagnostic criteria for major mental health disorders as a result of their experience at the border.

A class-action lawsuit followed, and the Biden administration later settled the case. In the settlement agreement, the federal government promised to repair some of the damage by reuniting the families in the U.S. and providing them with a path to asylum.

Now the second Trump administration is quietly abandoning that promise, putting thousands of once-separated families at risk of being split up a second time. At least four families have been deported already.

That’s according to the American Civil Liberties Union, which brought the original lawsuit, known as Ms. L. v. ICE, on behalf of separated families. The ACLU filed a motion in federal court on Tuesday asking for the recently deported families to be returned to the U.S., alleging that at least one of the deportations violated an explicit court order.

It’s only one skirmish in a pitched battle that the ACLU and advocates across the country have been fighting since Trump was reelected. The organization said the settlement agreement is now in danger of unraveling.

Protesters stand outside the James A. Musick Facility, a detention center that houses unauthorized immigrants, to protest President Trump’s immigration policies and demand that children be reunited with their families in Irvine on June 30, 2018.

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Since April, the administration has chipped away at Ms. L. in a series of technical maneuvers that have profoundly impacted families covered by the settlement, according to ACLU filings. Most notably, the government pulled funding for services laid out in the agreement — like help navigating the complex immigration process, assistance with housing and medical costs, and mental health treatment. Defending its actions in court, government lawyers cited the president’s agenda to cut costs and purge contractors with diversity, equity and inclusion policies.

While the services were eventually restored, the families are still facing the consequences of the lapse, and the government has only continued to make things harder for them.

Despite orders from a judge to give Ms. L. class members more time to stay in the country legally while plodding through the asylum process, court filings say the administration has failed to demonstrate that it is doing so.

“It started off slowly, but now we’re seeing breach after breach” of the settlement agreement, said Lee Gelernt, the ACLU’s lead attorney in the case. “The administration, while claiming the settlement is still in place, is trying to undermine it in various ways that will have the effect of allowing families to be reseparated and deported.”

It’s not unusual or improper for the government to renegotiate court-ordered settlement agreements, said David Super, an administrative law expert at Georgetown University who has litigated against both Democratic and Republican administrations. But, he said, it’s “extraordinary” for the government to change its policy before receiving permission from the court, as the DOJ has done in Ms. L. this year.

“When the government unilaterally stops complying, that’s not negotiation,” he said. “That’s contempt of court.”

The Department of Justice declined to answer questions about its challenges to the settlement agreement, saying it doesn’t comment on matters that are in litigation. But in hearings before Judge Dana M. Sabraw, of the U.S. District Court for the Southern District of California in San Diego, DOJ attorneys have maintained that government agencies are “trying to meet their obligations under the settlement agreement,” and that the deportations are legal.

The California Newsroom also asked the Department of Homeland Security, which oversees Immigration and Customs Enforcement, how it avoids reseparating families that are entitled to protection under the Ms. L. agreement.

“ICE does not separate families,” an unnamed DHS spokesperson wrote in an email. “Parents are asked if they want to be removed with their children or ICE will place the children with a safe person the parent designates.”

Among those deported was a mother of five who was detained at a routine ICE check-in, along with her two youngest children, according to an ACLU court filing. The woman, whose family members had been separated during the first Trump presidency, had permission to stay in the United States under the terms of the settlement. She and the toddlers were deported to Honduras anyway, while the rest of their family was left behind in the U.S.

“My two youngest children cry for their father and siblings every day,” the woman, who was identified only by her initials, wrote in a declaration to the court. “It breaks my heart to see them in such pain.”

‘The sole purpose of causing them harm’

Upon approving the Ms. L. settlement agreement in December 2023, Sabraw called family separation “one of the most shameful chapters in the history of our country.”

For decades, the federal government rarely separated families at the border, often allowing them to stay in the country together while they pursued asylum. But soon after Trump took office in 2017, immigration officials began a coordinated effort to apprehend all adults who crossed without authorization, including those with children in tow. While adults were detained and deported, kids — some only a few months old — were placed in federal custody. They slept on the floors of makeshift detention centers and were later sent to other relatives or foster homes.

Central American asylum seekers wait as U.S. Border Patrol agents take them into custody in 2018 near McAllen, Texas.

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The Trump administration called the policy “zero tolerance.”

In its rush to scale up the campaign, the government lost track of which children belonged to which families. Anguished parents were kept in the dark about where immigration officials had taken their kids — and when they could see them again. Families remained separated for weeks, months, and in some cases even years. As many as 1,000 children, parents and guardians may still be separated today, according to the ACLU, which is struggling to locate and reunite them all.

Trump officials have said, both during and since “zero tolerance,” that the explicit purpose of family separation was to make the crossing so painful that it would discourage other families from trying.

The pain has lasted.

“These events caused by the government have integrated into the psyche,” said Alfonso Mercado, a psychologist in South Texas who has done clinical research and consulted as an expert witness in family separation cases at the border. The trauma, he added, makes it difficult for families to function as they struggle to move on with a new life in the U.S.

Border Patrol agents take Central American immigrants into custody on Jan. 4, 2017, near McAllen, Texas.

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“We were intentionally tearing parents and kids from each other with the sole purpose of causing them harm,” said Sara Van Hofwegen of Acacia Center for Justice, the main contractor tasked with providing separated families with legal help. “Part of what the government did through Ms. L. was it promised to help people rebuild their lives and give them a small piece of redress for everything that they went through.”

In all, the Ms. L. settlement agreement applies to roughly 8,000 people, including close family members who were affected by the separation. California is home to the largest proportion — about 12% — of class members with known addresses, according to Acacia. The organization placed two of its eight contractors in California to manage the heavier caseload.

The vast majority of the families came to the U.S. seeking refuge from violence or persecution in their home countries, Van Hofwegen said. But before pursuing asylum cases, attorneys working with families through Acacia’s legal-services contract have helped them establish temporary immigration status and get permission to work, so they can support themselves and not worry about being deported during the asylum process, which can take years.

That work ground to a halt with little warning in April, when the Trump administration abruptly cut off funding for Acacia’s legal services.

Rolling back protections

Pulling the plug on the Acacia contract was only the first of a series of government steps that have made it more difficult for formerly separated families to stay in the U.S., according to the ACLU’s court filings and advocates who provide services to them.

In May, for example, the government stopped paying travel expenses for reuniting families. It also lets invoices pile up from an adjudicator who handles disputes about who qualifies for protections. Both services are required under the settlement agreement.

A Honduran migrant and his daughter, who are taking part in a caravan heading to the U.S., rest as they wait to cross the border from Ciudad Tecun Uman in Guatemala to Ciudad Hidalgo, Mexico, on Oct. 22, 2018.

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The next month, the DOJ let another contract lapse, this one with Oakland-based Seneca Family of Agencies, which provided mental health care, medical copays and general case management for separated families.

While the ACLU fought to get funding reinstated, some families couldn’t afford medications or access mental health care on their own. Some parents, who should have been flying to reunite with their children, were stuck in their home countries. One of the deported mothers searched for legal help to keep her family in the country, but none was available during the lapse of Acacia’s contract, according to the recent ACLU filing.

“One of the M.O.s of the Trump administration in this case has been to wait until there’s almost no time to fix things and then force us to rush into court,” said Gelernt, the ACLU attorney. “But while we’re litigating that issue, there’s this lapse in services.”

DOJ lawyers defended cutting off the Acacia contract by saying it would be cheaper for the agency to provide some legal services itself and let pro bono lawyers do the rest. The ACLU argued there aren’t enough private lawyers with the willingness and expertise to do that. The Justice Department also told the court that the government had only “temporarily paused” the travel and adjudication payments while officials reviewed the contracts for cost savings.

Asylum seekers line up at the San Ysidro port of entry in Tijuana, Mexico. The ACLU announced today a preliminary agreement with the Trump administration to allow some parents already in the U.S. but separated from their children at the border to apply for asylum.

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As for the checks the government stopped cutting to Seneca, the administration suggested the organization’s efforts to hire a diverse staff may have violated anti-discrimination laws, an allegation that Seneca rejected.

“We take pride in our compliance with civil rights and employment laws and have received no specific evidence of any violations,” Seneca wrote in a June statement. “Should such information emerge, we would welcome the opportunity to review and address it.”

In four separate orders throughout the summer, Sabraw found the government was in breach of the settlement agreement by withholding funding for services. After a series of failed attempts to push back, the DOJ finally reinstated the Acacia and Seneca contracts and paid for the other lapsed services.

Advocates say they welcome the reversal, but don’t expect the government to give up its fight against the settlement agreement.

“While we’re really grateful that our contract is reinstated and that people are getting services,” Acacia’s Van Hofwegen said, “we’re prepared for ongoing attempts to roll back protections for class members.”

‘In real jeopardy’

In fact, while Acacia and Seneca scramble to rebuild teams they were forced to lay off during the lapse in services, slog through their backlog of cases and attempt to reach families they’d turned away, the government has continued to undermine the settlement agreement and fight the court on multiple fronts.

Last month, it challenged Sabraw’s standing order that requires DHS to notify the ACLU within 24 hours if it detains anyone covered by the settlement agreement, and to provide a list of those already in ICE custody or required to check in with the agency. The DOJ told Sabraw that following the orders would be too “operationally challenging,” and in early September, it appealed them in the 9th Circuit. The case is not scheduled to be heard until December.

Young migrants lie down inside a pod at a Department of Homeland Security holding facility in Donna, Texas, the main detention center for unaccompanied children in the Rio Grande Valley, on March 30, 2021.

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Meanwhile, the ACLU remains in the dark about how many Ms. L. families are at risk of being swept up by immigration enforcement.

“Everyone’s entitled to notice and everyone’s entitled to good faith in the exercise of their contractual rights,” Sabraw told DOJ lawyers during a July 17 hearing. “The fear, of course, is that the government is detaining and removing people, and to the extent they fall within the corners of the settlement agreement, it seems to me it would have an obligation, no matter how burdensome, to get it right.”

The DOJ also recently opened an entirely new objection to the settlement agreement, arguing that noncitizens applying for legal status — including Ms. L. families — should pay hundreds of dollars in fees per person and be required to reapply annually, as laid out in the One Big Beautiful Bill Act passed in July. Under the settlement agreement, applying should be free and status should last for three years at a time, according to an ACLU court filing.

In declarations filed with the court, legal services providers wrote that nearly 30 people protected by the settlement agreement have already been denied work authorization renewals over the fees, even though Sabraw has not yet ruled on whether they should have to pay. According to one example in the ACLU’s court filings, a family of 10 could not come up with the $2,475 to renew their papers. Several of them have lost their jobs because their work authorization expired during the lapse in legal services.

If the chaos continues, Van Hofwegen said, the added burden of renewing status more often will also tax legal-services providers, delay asylum applications and ultimately eat away at the support the settlement agreement is supposed to provide for separated families.

“It makes every piece of this legal process that’s supposed to exist for them harder and harder, with the goal of denying permanency in the U.S. to as many class members as possible,” she said.

Given the lapse in legal services, Sabraw recently extended deadlines for class members to apply for immigration documents and ordered the government to reinstate their legal status or work authorizations that expired during the stoppage.

But it’s unclear if the government has complied with that order, according to the filings. Attorneys advising class members say the administration has not responded to their requests for proof of the extension. Without official documents, the attorneys said, Ms. L. families can’t show they have a right to be in the country if they’re stopped by law enforcement.

Even if the administration eventually complies with the court’s orders, say advocates, formerly separated families can only be protected by the settlement agreement if the government is willing to honor it.

“All the work the court did and all the work the parties did over two years to reach this settlement is in real jeopardy,” Gelernt told the court during one of many hearings this summer. “We cannot leave these families drifting.”

This story was produced with The California Newsroom, a collaboration of public media outlets throughout the state.