(WASHINGTON) – Hundreds of parents and children separated under the “zero-tolerance” border policy during President Donald Trump’s first term — who were later reunited and protected by a 2023 settlement — are at risk of being separated again due to a lapse in legal services, lawyers argue.
Under the 2023 court-approved settlement agreement, reached as a result of a class-action lawsuit filed in 2018, the federal government agreed to provide certain services to an estimated 5,000 people — families and children separated under the 2017-2018 “zero tolerance” policy — including behavioral health services and immigration legal services.
However, the ACLU says a recent decision made by the Trump administration to gut and then abruptly terminate a contract with the Acacia Center for Justice violates that agreement, leaving hundreds of migrants in legal limbo. The nonprofit organization is the main contractor that oversees services provided to separated families, such as helping them apply for parole and other benefits they’re “mandated” to receive at the government’s expense, the American Civil Liberties Union argues.
An estimated 414 migrants who are eligible for benefits are at risk of deportation because their legal status is set to expire by the end of the month if they don’t receive the help Acacia was offering them, ACLU attorney Lee Gelernt argued during a federal court hearing Friday in the Southern District of California.
“If they don’t have parole, they’re subject to arrest, deportation and re-separation,” Gelernt said during the hearing.
The Trump administration argues that it wants to provide those services on its own — through the Executive Office for Immigration Review’s Helpdesk, “or a separate similar program” and that it is not prohibited by the 2023 agreement from doing so.
An attorney representing the Trump administration said they had already emailed more than 52,000 individuals on their list of pro bono providers to see if they could represent some of the people covered under the settlement.
As of May 15, however, only 71 had “expressed interest,” so far, according to documents submitted in court.
“On the record before the court now there’s not enough to show a breach, and I can understand why the court is directing the parties to provide more information,” the government attorney said. “But again, right now, it is speculation and as the government noted in its response to the plaintiff’s motion, they have not provided one class member who has been deprived of services required under the settlement. So again, I think we’re getting way ahead by speculating on things that may or may not happen.”
Gelernt countered by saying even if those 71 providers eventually offer to help, it’s not enough to deal with the thousands of cases that are now in limbo because of Acacia’s absence.
“We spent two years working through this and the government understood that the only way to do this and provide people real, meaningful help was this structure,” Gelernt said, referring to the years of negotiation leading to the 2023 settlement. “This can’t be a sort of sideshow for the government. They’ll get to it when they get to it. Acacia woke up every morning with all its subcontractors, and all day long, worked on this as a full-time matter with their subcontractors.”
Judge Dana Makoto Sabraw set another hearing for May 30 and asked both sides to provide additional information about what services the government could reasonably provide.
“If Mr. Gelernt is correct in his assessment, in his understanding of the full landscape of these class members, the services they need, the services that were provided by Acacia, in his view, that there’s simply no way in the real world that 71 or a few more volunteer pro bono attorneys can pick up this caseload that Acacia was addressing, that, too, could lead to a finding of breach of the settlement agreement. But I need additional evidence in order to make those determinations,” the judge said.
Gelernt said that if the government now seeks to provide these services, affected class members may not trust them enough to reach out.
“I don’t know whether people will reach out to the government, because it’s the same government, obviously, that separated them,” he said.
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