Judge Dana M. Sabraw of the U.S. Southern District of California has issued a preliminary ruling to enforce a 2023 settlement mandating the government to provide no-cost legal, medical and health services for families separated at the border.
In April, the ACLU filed a motion to enforce the agreement after the Trump administration “abruptly notified the Acacia Center for Justice (“Acacia”) that (they) do not intend to renew the legal services contract,” according to the initial filing.
The Acacia Center, based in Washington D.C., led the Legal Access Services for Reunified Families program, which assisted members of the class-action lawsuit through a network of legal service providers.
This case, being heard in San Diego, comes amid President Donald Trump’s deportation campaign that has led to Immigrations and Customs Enforcement arresting over 100,000 immigrants in the last five months. It pertains to the second settlement reached in the 2018 family separation case Ms. L v. ICE.
Details of the settlement
The settlement reached in December 2023, at issue in the current motion, followed years of discussion between the plaintiffs and President Joe Biden’s Interagency Task Force on the Reunification of Families.
It is applicable to families who were separated by the federal government at the U.S.-Mexico border between January 20, 2017 and January 20, 2021, during the first Trump administration. The ACLU estimated that 5,000 children and their parents will be covered by the agreement.
According to an archived fact sheet by the Department of Homeland Security, the settlement provides behavioral health services for a period of three years and certain medical and housing assistance for a 12-month eligibility period. The settlement also required the federal government to streamline immigration processing of class members’ asylum claims and barred officials from re-establishing zero-tolerance policies within the next eight years.
At the crux of the current legal proceedings is the settlement’s stipulation to provide immigration legal services free of charge for the entire term of the settlement.
The settlement specified that the Department of Justice’s Executive Office for Immigration Review, or EOIR, would provide class members with not only legal advice and pro bono placement, but inform non-citizens of their rights, assist with document preparation and provide transportation stipends and new resources. The intention was to “address the particular needs of Ms. L. Settlement class members.”
The motion to enforce
The ACLU motion regarding the settlement alleges that the termination of legal services for any time, or even a decrease in the level of services, would be a “clear breach” of the terms of the agreement.
The motion argues that their concerns have only increased with the federal government’s termination of multiple legal services, including the Immigration Court Help Desk. When asked about how the EOIR would replace such services, the government stated that they would “provide the services it is required to provide, pursuant to the Settlement agreement.”
In response to the motion to enforce, attorneys for the DOJ argued that the settlement does not require the federal government to contract with a third party to provide legal services or require giving advance notice of changes.
“To date, Plaintiffs have still not been informed as to how services will be provided in the absence of the contract,” the ACLU motion stated. “Class members have relied on the legal services structure to access basic rights under the settlement and, in the absence, diminishment, or any delay in continuation of services, will face harm.”
The motion further described how legal services provided to families separated at the border are “of critical importance” due to the “complexities of the immigration system.”
Courtroom disputes over settlement
The initial argument referred to whether or not the settlement agreement required the federal government to provide re-parole services. Parole is granted to allow non-citizens to temporarily stay in the U.S., typically for humanitarian reasons or purposes of significant public benefit.
Acacia provided assistance with parole renewals. The federal government contends they do not need to do so due to re-parole not being explicitly mentioned in the original settlement.
Sabraw, at the Tuesday hearing, questioned whether the EOIR can adequately serve the significant existing caseload, particularly given the fact that Acacia provided assistance to 1,800 individuals. Attorneys for the DOJ answered by stating that they “won’t be lighting speed,” but “sufficient under (the) contract.”
Attorneys for the ACLU said that they received reports of class members contacting the EOIR for assistance and not receiving a response. Sabraw also asked DOJ attorneys to consider the “very real issue of fear in the community” and the resulting reluctance to contact the federal government for assistance.
The ACLU repeatedly alleged that the federal government has yet to connect a single class member with a pro-bono attorney, arguing that “providing those services through EOIR is illusory.”
They asked for a one-year extension of the contract with Acacia, noting that deadlines to file for asylum are upcoming in December.
The hearing also concerned ICE’s detention of class members.
Attorneys for the DOJ, although first unsure, later clarified that ICE does have a list of individuals who qualify under the settlement terms. Sabraw questioned why ICE would detain members despite being aware of their status.
The DOJ stated that there was “no provision precluding ICE from detaining class members.” Sabraw subsequently noted that ICE “should be careful” due to the special protection afforded to class members.
“I don’t see the government saying we’ll suspend all the deadlines in the settlement so that people are not coming up on asylum deadlines in December, nor are they saying that we won’t arrest and deport and separate you if this all isn’t handled,” attorneys for the ACLU stated.
Sabraw granted the motion to enforce the settlement at the outset of the hearing, saying a “preponderance of evidence” supports the claim that the federal government has breached its contract. He’ll offer specifics on the enforcement and potential renewal of Acacia’s contract when he issues a final ruling early next week.
Family separation in the first Trump administration
Tuesday’s hearing was the latest in a series of legal clashes over immigration that date back to Trump’s first administration.
In 2018, the government announced its implementation of a “zero tolerance” immigration policy. The policy demanded that all border-crossing parents, including those seeking asylum, be separated from their children as a tactic to deter people from seeking refuge in the United States.
“Ms. L” — a credible asylum-seeker from the Democratic Republic of Congo who was forcibly separated from her 7-year-old daughter — was one of thousands of individuals impacted by the administration’s family separation policy. Ms. L’s daughter was removed from her custody at the San Ysidro Port of Entry and taken to Chicago.
But Ms. L did not know where her daughter was sent. Nor did she know when — or if — she would see her again, according to the initial lawsuit filed by the ACLU against ICE and DHS.
Months after the filing, the ACLU moved to grant class certification to all adult parents in immigration custody who had been separated from their minor child while being detained, with the exception of parents deemed unfit or a danger to the child. Sabraw granted approval for class certification for the purposes of the first settlement.
In June 2018, the court also approved a preliminary injunction halting family separations and requiring reunification.
“According to Plaintiffs, the practice (of forcible separation) was applied indiscriminately, and separated even those families with small children and infants – many of whom were seeking asylum,” the court wrote. “Plaintiffs noted reports that the practice would become national policy. Recent events confirm these allegations.”
The court’s decision detailed the highly destabilizing nature of family separations, writing that the policies “put children at increased risk for both physical and mental illness,” and cause “psychological distress, anxiety, and depression” well after eventual reunification.
“Extraordinary relief is requested,” the court wrote, “and is warranted under the circumstances.”
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