Maria Sacchetti and Sean Sullivan, Washington Post, January 12, 2022
Two months after President Biden said migrant families separated at the border under the Trump administration deserve compensation, his administration’s lawyers are arguing in federal court that they are not in fact entitled to financial damages and their cases should be dismissed.
The Justice Department outlined its position in the government’s first court filings since settlement negotiations that could have awarded the families hundreds of thousands of dollars broke down in mid-December.
Government lawyers emphasized in the court documents that they do not condone the Trump administration’s policy of separating the children of undocumented migrants from their parents. But they said the U.S. government has a good deal of leeway when it comes to managing immigration and is immune from such legal challenges.
“At issue in this case is whether adults who entered the country without authorization can challenge the federal government’s enforcement of federal immigration laws” under federal tort claims laws, the Justice Department said in a Jan. 7 brief in a lawsuit in Pennsylvania. “They cannot.”
The legal strategy reflects the Biden administration’s awkward position as it shifts from championing the migrant families politically to fighting them in court. Migrant families have filed approximately 20 lawsuits and hundreds of administrative claims seeking compensation for the emotional and sometimes physical abuse they allege they suffered during the separations.
The motions to dismiss the cases were filed in a pair of lawsuits in Pennsylvania and California. Lawyers for the families said they expect the Justice Department to take a similar stance in other cases.
Bree Bernwanger, a senior attorney at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, who is representing three families in the Northern California case, said the Justice Department’s efforts to dismiss their lawsuit is “incredibly hypocritical.”
“They’ve come to court making fundamentally the same legal arguments as [President Donald] Trump,” she said in an interview.
But while immigrant advocates and liberals are likely to be furious at the administration’s position in court, some Democrats say privately that it has a political upside. The image of the administration fighting against the large payments, they say, could blunt GOP arguments that the administration is too soft on immigration.
The Trump administration separated more than 5,500 children from their parents at the border in an effort to deter mass migration and punish families that crossed into the United States, according to government figures. Trump officials also defended the government against the migrants’ lawsuits and fought unsuccessfully to dismiss two of the cases in Arizona.
Biden, in contrast, blasted the family separations on the campaign trail, declared the separations a “human tragedy” after taking office and created a task force to reunite families that remain apart. The family separation policy was widely unpopular, and Biden’s sharp criticism of it was a central way he sought to distinguish his immigration policy — and his administration’s worldview — from Trump’s.
Once he became president, Biden’s Justice Department negotiated with the families’ lawyers for eight months in an effort to settle the families’ legal claims. But talks stalled last month after the Wall Street Journal reported that the government was in talks to pay individuals as much as $450,000 each.
Republicans quickly expressed outrage, saying people who crossed the border illegally should not be receiving such hefty payments at taxpayers’ expense. Biden himself initially dismissed the Journal report as “garbage,” but he later said he was referring only to the size of the prospective payments — and that he thought the families deserve compensation for the suffering they endured.