Why Biden Refused to Pay Restitution to Families Separated at the Border

Late last week, after ten months of negotiations, the Biden Administration withdrew from settlement talks aimed at providing financial compensation to families who’d been separated at the border by the government of Donald Trump. The move was a shock even to current and former Administration officials. Previously, the President had left little room to doubt…

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Late last week, after ten months of negotiations, the Biden Administration withdrew from settlement talks aimed at providing financial compensation to families who’d been separated at the border by the government of Donald Trump. The move was a shock even to current and former Administration officials. Previously, the President had left little room to doubt what he thought of the Trump Administration’s decision to deliberately take some four thousand children from their parents in order to intimidate future asylum seekers. It was “criminal,” “abhorrent,” and “violates every notion of who we are as a nation,” Biden has said. Last month, he said of the parents, “You deserve some kind of compensation, no matter what.”

What changed the President’s mind? One answer is his growing skittishness about appearing too lax at the border. Another is Fox News. In October, the Wall Street Journal reported that advocates were asking the government to consider giving four hundred and fifty thousand dollars to each family member that had been separated under Trump’s zero-tolerance policy. This number, according to sources with knowledge of the talks, wasn’t final; the D.O.J. hadn’t agreed to it, and the government’s opening bid in the negotiations, which remains undisclosed, was substantially lower. But Republicans wasted no time using the figure to attack Biden. “While American families are struggling,” Senate Minority Leader Mitch McConnell said, “the President now wants to make millionaires out of people who crossed the border illegally.” Together with three other Republican senators, McConnell went on to introduce a bill to block any payments; they called it the “Protect American Taxpayer Dollars from Illegal Immigration Act.”

On November 3rd, a Fox News reporter asked Biden about the Journal story at a press conference. It was “garbage,” Biden replied, dismissing the reports as inaccurate. This, it turned out, was a significant gaffe. “The President was not appropriately briefed,” a former Administration official told me. “As soon as that news leaked, he should have been briefed not to comment.” A few days later, once Biden had been informed that the figure had, in fact, come up in settlement talks, the President corrected himself. He reasserted his belief that the families separated by Trump should receive some form of compensation; he just wasn’t sure what an appropriate amount might be. Privately, though, officials at the White House argued that moving ahead with a settlement had become a greater political liability than any potential fallout from a broken promise.

“What was supposed to happen was that the government would come back with a counteroffer,” Ann Garcia, an attorney at the National Immigration Project, told me. “We expected the leak to affect the number, but it was really surprising that they walked away altogether.” I first met Garcia, who is thirty-four and lives in Oregon, in 2019, when she was working at an organization called CLINIC. Her job consisted of tracking down families that had been separated by Trump, many of whom still weren’t reunited. It was a monumental undertaking. The files kept by the Trump Administration were full of holes, so, when a federal judge ordered the government to reunite separated families, in the summer of 2018, it was virtually impossible to account for everyone based solely on the lists of families circulating among federal agencies. After Biden became President, he announced that he would form a task force to reunify the separated families, and Garcia became an influential liaison, coördinating efforts between the government and a network of advocates who were representing individual families. After D.O.J. lawyers first approached the American Civil Liberties Union and several other legal advocacy groups and law firms, in March, 2021, Garcia participated in some of the earliest conversations about financial compensation. “Putting a dollar amount to this was one of the strangest things I’ve ever done,” she told me. “People like to say we’re a nation of laws. Well, this is the law. The government talks money. They’re not going to throw someone in jail for this, not a bureaucrat anyway. This is the most plausible form of accountability. If we do not want our government to torture asylum-seeking families again, we should support these settlements.”

On Sunday, I spoke with a Honduran mother in her early thirties who lives in Houston. Her name is Mirian, but she asked that I not use her last name because of a pending asylum case. It was around eleven in the morning, and her house was full of weekend sounds: the squeals of her five-and-a-half-year-old son, the clatter of dishes, the deep voice of her boyfriend as he tried to corral the boy in the background. In February, 2018, Mirian carried her son, who was then eighteen months old, to an official port of entry on the international bridge leading into Brownsville, Texas. She’d been a house cleaner in Progreso, a port city on the Yucatán Peninsula, where street protests had erupted that winter after national elections were marred by fraud. Members of the military had stormed her neighborhood and, at one point, shot cannisters of tear gas at her home.

Migrants have the right to request asylum wherever they cross along the U.S.-Mexico border, whether at or between ports of entry, but Mirian had decided to come in through the front door. After giving border agents a sheaf of identification documents, she and her son went to sleep in a small cell, where they were roused the next morning. “They said he would be going to one place and I would be going to another,” she said in a subsequent court declaration. Her voice caught as she told me what had happened next. No one explained, when she asked, why she and her son couldn’t remain together. Instead, the agents put him into a car and left. She told me that she could still see the expression on his face when he craned his neck to look for her as the government car drove off. It was the first time the two of them had ever been apart.

Two months and eleven days passed before they were reunited. He didn’t seem to recognize her when the social worker finally handed him back to her. During their time apart, he’d been placed with a foster mother to whom he’d quickly grown attached. On the phone the other day, I asked Mirian how long it took for her son to feel comfortable again in her presence. She paused. The answer was complicated, she explained. Almost four years later, he gasps and sobs whenever Mirian gets up to go to the bathroom, or to get something from another room. But there were other problems she began noticing in the months after they were reunited. At the time, Mirian was living with a brother and three sisters, who had children of their own. (The husband of one of them, who was travelling with their five-year-old son, joined Mirian at the bridge in Brownsville; they were briefly detained together, and then released.) “Their kids acted one way, and my son acted another,” she said. He was muy imperativo, she told me. It started with incidents of self-harm: he’d take a toy and brandish it like a weapon, swinging and whirling it around, often banging it against his head. There were flashes of aggression that Mirian had never seen before. “You need to get him help,” one of her sisters told her.

The first consultation cost two hundred dollars, an astronomical sum for Mirian, who entered the American labor force in the kitchens of fast-food restaurants. Looking for the highest wage, she went from one chain to another; Wendy’s paid better than McDonald’s, which paid better than Burger King. Eventually, she found a stable job as a school janitor. But, by then, her son’s behavior was too erratic for her to keep it. She couldn’t leave him with a babysitter or even with her sisters; he was having too many outbursts. Now he’s in kindergarten, and Mirian cares for him full time. Two months ago, a doctor diagnosed her son as having hyperactivity and learning disabilities, but ruled out autism. Mirian told me, “Once a week he goes to a therapist, and at school there are counsellors who help. It takes him twice the effort to do things. He can speak, but it’s hard for him to have a full conversation. He can’t follow it, and it becomes hard for him to talk.”

“There are so many cases like hers,” Lee Gelernt, of the A.C.L.U., told me after I spoke to Mirian. Gelernt was the lead litigator in the lawsuit that ended Trump’s family-separation policy, in the summer of 2018, and has been one of the main negotiators in the settlement for monetary compensation. He is a seasoned advocate: plainspoken, indefatigable, and relentless in his efforts to center the public narrative around a sense of moral outrage rather than political brinkmanship. His job, he told me, “is to make sure when people close their eyes they can visualize these little kids begging not to be taken away.”

Earlier this fall, shortly after the Journal story came out, Gelernt called me to register his concern that public attention was drifting. The political debate was becoming mired in the dollar amounts of a putative settlement, and no longer had much to do with the actual harm the families had suffered. It was Biden’s responsibility, Gelernt argued, to remind everyone what was truly at stake; instead, the Administration seemed to be letting the opposition redefine the terms. “Back in 2018 and in the years after, most Republicans were trying to run away from the family-separation policy,” he said. Now the public outcry was muted, and these same Republicans, who’d been assailing Biden over the border since his first day in office, were pressing their advantage. “Before deciding what these families deserve, I hope people will think first about what we did to these children and whether you would allow the debate to take this turn if it were your child,” Gelernt said. “Likely you would say that there is no amount of compensation that could make up for having your child taken.”

This is the unanswerable question at the core of the settlement discussions: if no form of recompense can ever, fully, make these families whole, is it true that a certain sum can be too high? Biden has decided that there are limits to the political costs he’s willing to incur, in any case. But without a collective settlement, lawyers at the Department of Justice will have to figure out, on an individual basis, who deserves compensation and who doesn’t. Only about nine hundred cases have been filed, to date. As Ann Garcia told me, “Trauma runs the gamut. Some kids are depressed, some have P.T.S.D., some have been hospitalized. Many parents still have not been able to regain their children’s trust. They’ve told me that their children aren’t the same anymore. It’s the fact of their having been separated that defines the harm. Period. There’s a whole penumbra of horrible things that happen after. But the settlement hinges on the separation itself. That’s what the figure is for.”

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