The Trump administration’s family separation policy drew condemnations when it came to public light in 2018, not only from Democrats but also from Republicans like Senator Ted Cruz and Melania Trump.
Thousands of mothers and fathers languished in cells without any idea of their children’s whereabouts or whether they would ever see them again, and thousands of young children were stranded in shelters without understanding what was happening. Years later, many of the children still struggle with the trauma, lawyers for the families say.
For the federal government, putting a number on what it might owe the families — some of whom are now suing for damages — has proved complicated.
It grew far more challenging in late October.
News reports citing anonymous officials revealed that the Biden administration was negotiating settlements that could provide up to $450,000 per person for the migrant parents and children. Top Republicans and right-wing pundits erupted at the potential figure, often presenting it as set in stone and calling it “insane” or “almost impossible to believe.”
The leaked $450,000 number, first reported by The Wall Street Journal on Oct. 28, had indeed been discussed in talks between the Justice Department and lawyers for the families — but no amount had yet been agreed upon. There is still no agreement, and negotiations are expected to continue into next year, those involved in the talks said. It is also unclear how many people could be eligible for such a payment if a settlement is reached. Fewer than 1,000 of the 5,500 families affected have filed a tort claim, according to lawyers for the migrants.
But conservative leaders and commentators quickly assailed the idea of paying large settlements to undocumented people. In the process, they turned an episode that had been an embarrassment for the Trump administration into a political quandary for Democrats who want to make amends to the separated families, but who are also increasingly wary of their image of being lax toward undocumented migrants.
Republicans, including some who had criticized the family separation policy three years ago, contended that large payments to the migrants, or any payments, were unwarranted and offensive.
Senator Mitch McConnell, the Republican minority leader, accused President Biden of wanting to “literally make millionaires out of people who have violated federal law.”
Senator Tom Cotton of Arkansas asserted that the payments would surpass $1 billion and likened the idea to paying “damages to a burglar who broke into your home for the ‘psychological trauma’ they endured during the crime.”
And Tucker Carlson opened his Fox News show by accusing the Biden administration of paying “reparations to illegal aliens,” obliquely invoking the racially and politically contentious debate over compensating Black Americans for the lasting societal effects of slavery.
More undocumented immigrants were heading north toward the border, Mr. Carlson claimed, inaccurately conflating a migrant caravan in Mexico with the proposed payments, because “Joe Biden is literally paying people who do it.”
Largely overlooked in the coverage and congressional maneuvering over the possible payments was how widely disparaged the Trump administration’s family separation policy had been. At the time, scores of Republicans denounced the program, which was meant to deter migration by causing distress for people trying to enter the country through Mexico.
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Mr. Cruz said then that he was “horrified” by the images of crying children being torn from their parents’ arms. Mrs. Trump, the former first lady, said she “hates to see children separated from their families.” One of her predecessors, Laura Bush, likened the practice to the internment of Japanese Americans during World War II.
A federal judge in San Diego ordered the administration to reunite the families in June 2018, and Mr. Biden has promised to make amends to the families who were affected.
Most of the reunified families remain in the United States, where they are in removal proceedings while seeking asylum. But many of the parents were deported when the separations occurred. A small number of them have been allowed to return to the United States this year, and immigration advocates are still trying to locate more than 200.
But there remained the question of compensating the families for the damage done. “There is no amount of money that can undo the harm that being separated for months — and in some cases, years, if parents were deported — caused our clients,” said Bree Bernwanger of the Lawyers’ Committee for Civil Rights in San Francisco, who is representing a number of families. “But, under the law, if the government hurts people, commits a torturous action, it has to be accountable for that harm.”
Anyone wronged by the United States can bring claims against the government, regardless of that person’s nationality, and the migrants have that right to due process. As a result, settling with the families as a group could actually save the government, experts said, by sparing it the expense of fighting hundreds of legal cases one by one — and it could also spare the Biden administration the awkwardness of having to defend, in court, a policy that it disavowed.
As border crossings have hit new highs, with 1.7 million migrants encountered last year and an untold number making it into the country, Republicans have consistently hammered the Biden administration for being too lenient. And the White House has struggled to articulate a response and a message.
The White House referred questions to the Justice Department, which pointed to its policy of not commenting on unresolved settlement talks.
There is at least one precedent for a migrant family receiving a large sum from the government: Conchita Cruz, a lawyer with the Asylum Seeker Advocacy Project, which represents multiple separated families, said the organization had obtained a $120,000 settlement for a Honduran family. In that case, she said, a boy was detained with his mother in 2015 after they crossed the border. She was told in front of him that he would go to a shelter and be put up for adoption, and that they would never see each other again. (Ultimately, they were not separated.)
The settlement was reached in 2019, with the Trump administration.
Still, the debate over financially compensating the families affected by the separation policy was transformed by the premature surfacing of the $450,000 figure.
It was leaked by a government official, apparently out of a desire to put a public spotlight on the payments and bring the number down, according to people familiar with the negotiations, who spoke on the condition of anonymity to discuss internal deliberations.
Lawyers for the families criticized the leak. “It’s shortsighted to try to exploit these negotiations for political gain,” said Ann Garcia, a lawyer who has filed claims on behalf of more than a dozen families.
Many Republicans noted that the amount was more than four times what the military pays the family of service members killed during active duty. Even some Democrats saw it as excessive.
Mr. Biden himself seemed to agree at first: Asked by a Fox News reporter about the settlement talks on Nov. 3, he called the report of $450,000 payments “garbage.”
Three days later, however, after coming under fire from civil rights advocates, the president said that he believed some families should be compensated but that he didn’t know what amount might be appropriate. Mr. Biden’s reversal was symptomatic of a larger dilemma that he and many party leaders face as they try to balance the demands of progressive activists against the more moderate sensibilities of many voters.
Steve Israel, who represented Long Island in Congress as a Democrat for two decades, said that his party would further alienate swing voters without a compelling response to Republican cultural attacks. “Republicans swept in 2021 in moderate suburbs by stoking fear, using alien proxies like critical race theory and hordes of immigrants storming the border and defunding the police,” Mr. Israel said. “Democrats have to respond to those anxieties without reaffirming them.”
G.O.P. lawmakers have continued to push their message. In the Senate, Republicans offered an amendment to disband the task force that Mr. Biden established to identify and reunite the affected families; it failed on a party-line vote. Separately, they introduced legislation to outlaw any payments to migrant families.
More than 150 House Republicans introduced a similar bill but gave theirs a more eye-catching title: the Illegal Immigrant Payoff Prohibition Act of 2021. Conservative politicians across the country criticized Mr. Biden, including Gov. Ron DeSantis of Florida, who called the proposed settlements “a slap in the face to every hard-working American.”
To critics who have warned Democrats that they are not doing enough to counter Republican attacks on issues like policing and education, Mr. Biden’s initial response fit a familiar pattern.
“If your only reply to an issue of broad concern to the public is ‘You’re being fooled,’ or ‘You’re being duped,’ or ‘This is only something they talk about on Fox News,’ you’re losing the argument,” Ruy Teixeira, a prominent left-of-center sociologist, said. Mr. Teixeira argues that liberals have lost their ability to talk to the political center because they don’t want to displease the progressive left.
“It’s not that these are hard things to say,” he said. “It’s just that Democrats have a hard time saying them in this political climate.”
The climate for the settlement talks, meanwhile, has shifted noticeably. Lawyers representing the families said the focus on the size of potential payments had diverted attention from the scale of the policy’s cruelty: To this day, they said, some of the children have lost the ability to speak and engage normally in conversation; others have become incontinent. “They are terrified of being separated again,” Ms. Bernwanger said. “They can’t be alone. They are afraid to go to school. They fear their parents won’t be there when they get home.”
In another unwelcome twist, the lawyers said, reports of the possible payments rapidly reached Central America, where many parents who were subjected to the separation policy were deported — and where they could become targets of extortion and violence by gangs if they receive payouts.
“It’s not over for our clients,” Ms. Bernwanger said. “It’s not over for our government. We have not seen accountability. We have not seen justice for people hurt by this policy in the exact way the policy was designed to hurt them.”
