WASHINGTON – Migrants whose children were taken from them under former President Donald Trump's zero-tolerance border policy have not reached a settlement agreement with the U.S. government, a lawyer for the families said Thursday as he and other advocates pushed back at increasing criticism of a proposal to pay compensation to them.
Attorney Lee Gelernt of the American Civil Liberties Union would not discuss details of the talks nor confirm a previously reported settlement proposal of several hundred thousand dollars to each affected person. He did, however, hold out the possibility of a trial, featuring parents separated from children as young as six months as witnesses, if there's no agreement to end the litigation.
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“All I can say is there’s no deal on the table and we have no timeframe necessarily," Gelernt said in a conference call with reporters.
The settlement talks, which would typically be private until an agreement is finalized, have instead become a new line of attack for Biden administration critics seeking to tie the issue to the increasing number of migrants seeking to cross the U.S.-Mexico border over the past year. Republicans grilled Homeland Security Secretary Alejandro Mayorkas about it this week when he appeared before the Senate Judiciary Committee.
“As you can imagine, many Americans think it’s a pretty outrageous idea to offer massive taxpayer-funded payments to illegal immigrants who broke our laws, particularly in the middle of a record-shattering border crisis that this administration has created,” Sen. Chuck Grassley, a Republican from Iowa, said at the hearing Tuesday.
Mayorkas referred questions from the senators to the Department of Justice, which is handling the negotiations, though at one point he disputed the suggestion that a settlement would encourage future migrants to seek to come to the U.S.
About 5,500 children were forcibly removed from their parents under Trump’s zero-tolerance policy in which parents were separated from their children as the administration sought to discourage people from crossing the border, even if they were presenting themselves to authorities to seek asylum.
Trump halted the practice in June 2018 amid widespread outrage, including from many Republicans, just six days before a judge ordered an end to the program in response to a lawsuit filed by the ACLU.
In addition to negotiating a potential settlement, the Biden administration has also been working to reunite some of the families. There are believed to be hundreds, and perhaps as many as 1,000-2,000, parents who were separated from their children and still haven't been located.
The settlement talks had been going on quietly for months when The Wall Street Journal reported in October that the Justice Department was considering paying about $450,000 to each person affected. The Associated Press later confirmed the figure had been under consideration.
In addition to the payment, settlement talks have also included discussion of granting the families legal U.S. residency and providing counseling services.
Asked about the amount on Nov. 3, Biden appeared to misunderstand the question and said a payment of about $450,000 per person was “not going to happen." He later said he supported a settlement, without specifying an amount.
“If, in fact, because of the outrageous behavior of the last administration, you coming across the border, whether it was legally or illegally, and you lost your child — You lost your child. It’s gone — you deserve some kind of compensation, no matter what the circumstance,” Biden said. “What that will be I have no idea. I have no idea.”
Migrant advocates say the amount of the settlement and the legal status of the families misses the point. “What’s really an issue is the question of whether we as a country are OK with ripping babies out of the arms of their parents,” said Conchita Cruz, co-executive director of the Asylum Seeker Advocacy Project.
Gelernt noted in the call with reporters that many of the separated families were not entering the country illegally, as critics claim, because they were presenting themselves to authorities to seek asylum, which is legal under U.S. law. He also pointed out that even non-citizens can sue the U.S. government, regardless of their immigration status.
“The truth is that lawyers always settle cases, and it’s usually because it’s in their financial interest to do so," he said.
The advocates gave a sense of what a trial might entail, bringing a woman to the call who gave her name only as Leticia and tearfully described having her son taken from her as she sought asylum in 2017. It was 2 1/2 years before they were reunited and she said the boy showed signs of psychological trauma from the separation.
“Even now after being reunited together we live in fear a day that we could still be separated," she said. "I could not imagine living through this pain again.”