Biden administration fighting to have lawsuits by families separated at the border dismissed in court

Remember that story from a few months ago about the Biden administration wanting to pay out hundreds of thousands of dollars to migrants whose children were separated from them during the Trump administration? The ACLU had helped nearly 1,000 migrants file lawsuits seeking damages and the Biden DOJ was considering a settlement which would have given each family as much as $450,000. And then the story went public and, though President Biden said he supported a settlement, in mid-December talks were suspended. The ACLU was not happy about it.

But it turns out the situation has become increasingly awkward for the Biden administration. While they once seemed eager to make a deal with migrants, DOJ lawyers are now asking courts to dismiss the migrant’s claims. The Washington Post calls it a “precarious crossroads.”

Two months after President Biden said migrant families separated at the border under the Trump administration deserve compensation, his administration’s lawyers are arguing in federal court that they are not in fact entitled to financial damages and their cases should be dismissed.

The Justice Department outlined its position in the government’s first court filings since settlement negotiations that could have awarded the families hundreds of thousands of dollars broke down in mid-December.

Government lawyers emphasized in the court documents that they do not condone the Trump administration’s policy of separating the children of undocumented migrants from their parents. But they said the U.S. government has a good deal of leeway when it comes to managing immigration and is immune from such legal challenges.

“At issue in this case is whether adults who entered the country without authorization can challenge the federal government’s enforcement of federal immigration laws” under federal tort claims laws, the Justice Department said in a Jan. 7 brief in a lawsuit in Pennsylvania. “They cannot.”

Some of the attorneys quoted in the story say they are still open to resuming talks about a possible settlement but the Biden DOJ seems to have turned a corner. The government’s motions describe the claims as “not compensable.”

Naturally the blame is being put on the right for complaining about the possible settlement back in October but the claims are either compensable or not. And if the Biden DOJ is now saying they are not, that’s not the fault of the GOP.

Obviously there must be a reason for the sudden about face and in this case and I can only think of two possibilities. The first is that the Biden administration doesn’t want to draw media attention to the border. Given that the number of migrant encounters is still unusually elevated above the normal seasonal pattern, I can see why. Notice that light orange line on the left.

The other possibility is that the administration is worried about another kind of attention. What if word of the payout gets back to Central America and generate another surge of migrants to the border? The family separation policy was ended years ago but a report saying migrants were receiving a massive payout could be distorted by human traffickers in the region into a promise that the border is open to families.

President Biden must be aware that the numbers in that cart above mean he’s potentially setting himself up for another record year at the border and a second round of crisis accommodations for tens of thousands of migrants in stadiums or convention centers. The media has been helpfully keeping the border off the front pages for a few months but that could change if the numbers keep going up. Speaking of which, today is the 18th of January. Why haven’t the December numbers been posted yet?

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