Throughout the summer of 2018, thousands of migrant families were separated—sometimes, physically torn from each other—at the United States-Mexico border. The Zero Tolerance Policy, as it was known, was enacted by the Trump Administration in order to deter families from lawfully seeking asylum in the United States.
Between May and June 2018, federal officials deliberately separated over 5,500 migrant children from their families at the southern border, often without any plan for reunification. Parents were held in detention facilities while their children were placed in separate shelters, sometimes thousands of miles away, under the custody of the Office of Refugee Resettlement.
Images and stories of crying children, distraught parents and the anguish they experienced quickly spread across media platforms, sparking outrage and condemnation across the country. The policy, which marked a radical break from longstanding federal border policy that prioritized keeping arriving families together, marks a dark spot in the nation’s history.
Upon taking office in January 2021, the Biden Administration denounced the Zero Tolerance Policy as “abhorrent,” “unconscionable” and “a moral and national shame” and established a task force to help reunite the roughly 1,000 children who had yet to be unified with their parents. Department of Justice officials also began engaging in global settlement discussions to compensate dozens of parents and children who were separated. But after months of negotiation, the Administration abruptly pulled out of the settlement discussions.
The families responded by going to court. In the wake of the collapse of the settlement talks, private law firms partnered with public-interest organizations to bring a wave of lawsuits on behalf of families separated at the border.
Hogan Lovells was one of those firms, partnering with the not-for-profit immigrant rights organization RAICES, and local Am Law 250 firm Lewis Roca, to file a lawsuit against the federal government in the District of Arizona seeking damages under the Federal Tort Claims Act for intentional infliction of emotional distress, negligence and loss of consortium.
The first lawsuit, filed in July 2022, was brought on behalf of four sets of parents and children forcibly separated from each other for over 60 days in May 2018.
Then, in May, Hogan Lovells, RAICES and Lewis Roca filed a second lawsuit, this time on behalf of two sets of parents and children forcibly separated from each other on two separate occasions. The first separations lasted over two months long. After being reunited at a detention center following the first separation, these families were then brutally separated a second time, compounding the already traumatic experience of being forced apart once, stripping away any reassurance they felt after reunification, and leaving them in constant fear that they will be separated again.
Plaintiff-families report suffering horrible abuses while apart. For example, government officials routinely taunted the parents, claiming the parents would be deported and that their children would be put up for adoption in the United States afterward. The same officials refused to inform the parents of their children’s whereabouts and often did not allow parents or children to contact each other.
For many plaintiff-children, the separations were the first time they had ever been apart from their parents. The children cried constantly, struggled to eat and rapidly lost weight. Plaintiff-parents were overwhelmed with fear as they watched as detainees around them fainted from grief and hunger and wondered if their children might be suffering similar conditions. They worried where their children had been taken and whether they would ever see them again. They didn’t know if their children were dead or alive. Distraught from the stress of the separations, the plaintiffs suffered a myriad of physical ailments, including weight loss and insomnia. The plaintiffs’ experiences are unfortunately representative of the thousands of families separated under the Zero Tolerance Policy. Each of the plaintiff families report being detained in unsafe and inhumane conditions, without adequate food, water, bedding or space to sleep. They were housed in facilities with inadequate restrooms and forced to go days or weeks without access to clean water. Many of the plaintiff families were detained in notoriously cold facilities referred to as hieleras, or “iceboxes.” Some plaintiff children were locked inside shelters, prohibited from going outside and under constant surveillance.
The suffering that the government inflicted upon families seeking asylum was intentional, and was exacerbated by its refusal to provide information to families about their missing family members, or to implement adequate measures to ensure reunification. Plaintiff families were separated with no notice, no information and no plan for reunification. For weeks or months, the parents and children were detained separately, sometimes thousands of miles apart, all while begging officials to be reunited.
In June 2018, federal district court Judge Dana Sabraw issued a national injunction ordering the Trump administration to reunite migrant children with their parents within 30 days, or for children under the age of 5, within 14 days. The order also prohibited future migrants from being detained, released or deported without their children.
Plaintiffs who were separated a second time suffered a unique form of harm. Once the families were reunited under a federal court injunction, they never fathomed being separated again. Following the public outrage that the separations had prompted across the country and the issuance of the federal injunction, the families believed they had been reunited permanently and that they had governmental protection and assurance that such separations would never happen again. They were wrong.
In the end, despite tens of thousands of hours and millions of dollars, the Justice Department acknowledged that the Zero Tolerance Policy was shameful and inhumane, and that it failed to deter asylum-seekers from coming to the United States. Still, the Justice Department continues to resist any attempt to hold the government liable.
Five years after the policy’s enactment, its effects are still being felt. The six plaintiff families represented by Hogan Lovells, Lewis Roca, and RAICES are still reeling from being separated and detained. Despite this suffering, which the U.S. government has acknowledged and lamented, these families have received no explanation, acknowledgement or apology from the U.S. government. Both parents and children continue to suffer from the long-term toll wrought by their forcible separations, including significant physical, mental and emotional distress.
Hogan Lovells, RAICES and Lewis Roca say these families have waited long enough and are taking the Biden Administration to court to make sure that these families get the compensation they deserve for the trauma inflicted upon them by the federal government. The Department of Justice has moved to dismiss both cases filed against it, continuing to argue that the government is immune from liability under the Federal Tort Claims Act because Congress has not waived sovereign immunity for the types of claims asserted by the plaintiffs. While the court has yet to rule on the government’s motions to dismiss, such arguments have been routinely rejected by courts presiding over similar cases across the country.
The Hogan Lovells team includes partner Justin Bernick; senior associates Danielle Stempel, Michael West and Alicia Paller; associates Melissa Giangrande, David Willner and Dana Raphael; and paralegal Alicia Balthazar. The team from Lewis Roca includes Gary Bendinger, Allison Whitehall and Katie Derrig. The RAICES team includes Javier Hidalgo and Keith Armstrong.
Melissa Giangrande is an associate in Hogan Lovells’ Washington, D.C., office who focuses her practice on complex government and internal investigations.
Reprinted with permission from the November/December issue of Texas Lawyer. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Authored by Melissa Giangrande.