Why families separated during Trump's first term face new risks as legal aid remains in limbo
Judge Dana Sabraw has mandated that the executive branch resume services by an independent contractor advising parents and children who were separated during Donald Trump's 'zero tolerance' policy at the US-Mexico border in 2017 and 2018, when accounts of traumatic scenes spread around the world and a secret recording was made public of terrified, sobbing children being torn from their parents by federal agents, to be detained separately.
These legal services help families apply for permission to stay in the US, having been allowed to return or remain years after they were broken up by the first Trump administration for crossing the southwest border without authorization.
It is unclear when or if the federal government will comply with Sabraw's decision last week. At stake are the families' futures in the US, and even whether they will be vulnerable to Trump's current mass deportation campaign, which is now leading to similar scenes, this time across the US interior, where other children and spouses scream and sob as their family is effectively separated amid escalating immigration enforcement.
The American Civil Liberties Union (ACLU) challenged the Trump administration in court this spring over its 'sudden and unexplained termination' of contracted legal services for those covered in the 2023 settlement that had finally emerged, during the Biden administration, from the ACLU's lawsuit 'on behalf of thousands of traumatized children and parents' from Trump 1.0.
That settlement provided the formerly separated families with assisted access to basic legal help, and the Biden administration complied with its requirements last year by hiring an independent contractor – the Washington DC-based Acacia Center for Justice – to run a new program, Legal Access Services for Reunified Families (LASRF).
Trump then failed to renew Acacia's contract – and the court ruled breach of settlement.
'This is not a minor or technical breach. In the absence of lawyers to assist them, these children who have suffered so much at the hands of the first Trump administration will be in real danger of being separated again,' ACLU attorney Lee Gelernt said in a statement.
'This ruling will help make sure that doesn't happen.'
Through LASRF, formerly separated families aren't guaranteed free, full representation. But they are given limited support that can be gamechanging. For instance, with filling out forms that could help stop them from being deported from the US, or make getting jobs possible, or reopen an immigration court case to pursue the protection they had hoped to ask for years ago when they were criminalized by Trump 1.0.
However, this spring, Trump 2.0 abruptly 'federalized' the LASRF program at the suggestion of Elon Musk's so-called department of government efficiency (Doge).
In practice, that meant the responsibility of orienting, informing and referring out formerly separated families to a small number of pro bono attorneys now fell to staffers at the Department of Justice's Executive Office for Immigration Review (EOIR), which houses the immigration courts (in the executive branch of government not the judicial branch). These are the same immigration courts where people are increasingly afraid to go now, because of rampant arrests nationwide by Immigration and Customs Enforcement (Ice) in a highly unorthodox collusion between court and enforcer – as judges are allowing government attorneys to quickly dismiss potentially meritorious cases for protection, so that the administration can deport families with ease.
And these are the immigration courts that will eventually adjudicate the formerly separated families' fate, even as its parent sub-agency provides legal help.
In its court challenge, the ACLU had pointed out that EOIR providing these legal services itself signified 'a clear conflict'. And, in his decision, Sabraw slammed the government for failing to provide the quality and quantity of services required, ordering the Trump administration to rehire Acacia.
Turnout has been low in recent weeks – three or six attenders – for virtual group orientations hosted by EOIR's version of the LASRF program, even as the sub-agency said it would primarily focus on those kinds of group services, not the individualized help that is so often necessary to successfully apply for legal relief in the US.
And if families tried to look elsewhere for free legal advice, they were likely to come up short after the Trump administration defunded other programs such as immigration court help desks and detention-based legal orientation programs across the country.
'It's particularly indicative of how cruel and anti-children this administration is. You know, they seem to have no interest in a fair day in court for people, including those living with lifelong trauma caused by their [previous] policies,' said Jess Hunter-Bowman, a senior attorney at the National Immigrant Justice Center, one of the independent subcontractors that has provided services through LASRF.
Thousands of families were separated at the US-Mexico border during the first Trump administration, including a Guatemalan father and his 10-year-old son in Texas. When the father – whom the Guardian is not identifying for his safety – learned he was going to be deported, his son was off playing with other kids at the detention center where they were being held.
Agents had refused to let father and son say goodbye. The kid played on, oblivious as his father was chained as if he were a dangerous criminal and removed in tears, forced to leave his son behind.
The boy was also eventually sent back to Guatemala. Several years later, as they were barely scraping by, they received an unexpected invitation for their family to come to the US, as part of the federal government's attempt, now under the Biden administration, to answer for family separations like theirs.
Despite the previous mistreatment and trauma, the pull of the American dream remained unassailable, and in a matter of months, the father, son and their loved ones touched down stateside.
Although their first days in a new country were difficult, they soon found work and community. And, when they eventually needed help with their next steps in the immigration process, they turned to a lawyer who, through LASRF, patiently guided them through complex application forms they needed to fill out in English – a language they don't speak.
Because of the program, their entire family has been able to preserve humanitarian permissions and can continue to live and work legally in the US while they pursue more permanent status.
'If it hadn't been for the attorney's help,sincerely, I wouldn't have been able to do anything,' the father said.
The Trump administration has not yet contacted Acacia about the ruling, which means services have not been able to resume. For good measure, judge Sabraw flayed the original 'zero tolerance' strategy at the border.
'The policy resulted in the separation of thousands of parents from their minor children, many of whom remain separated to this day,' he wrote. 'The policy caused lasting, excruciating harm to these families, and gratuitously tore the sacred bond that existed between these parents and their children.'
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