In summer 2017, the Trump administration began quietly separating families at the US-Mexico border. Under the “zero-tolerance” policy formally announced months later, federal immigration authorities removed children as young as four months old from parents or adults who were seeking asylum. The administration didn’t announce any plans for reunification.
As Trump 2.0 grows closer and closer, so does the unease of the lawyers and advocates who have spent years locating, representing and reuniting these families. Organizations Justice in Motion, Kids in Need of Defense and the Women’s Refugee Commission, along with the global private law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, formed a court-appointed steering committee after the American Civil Liberties Union (ACLU) filed the 2018 class action lawsuit Ms L v US Immigration and Customs Enforcement to stop separations at the southern border. While a judge halted Trump’s policy, some families still remain separated.
How many are still apart is a mystery. “Given the lack of records, it’s impossible to know precisely how many families remain separated,” said Lee Gelernt, lead attorney in the Ms L litigation and a deputy director of the ACLU’s Immigrants’ Rights Project. “We think there may be around a thousand families or more that we can’t confirm have been reunited.”
The murkiness regarding the number of still separated families continued under the Biden administration, which in February 2021 established a taskforce on family reunification through executive order 14011. To date, the taskforce has identified 4,728 families that were previously separated. However, past Biden administration estimates put that figure as high as 5,500.
Joe Biden’s executive order directed the family reunification taskforce to provide interim progress reports every 60 days. Only one was released in 2024 and according to that April report, of the known number of family separations, there are “1,360 children without confirmed reunifications”. These are overwhelmingly children living in the US with sponsors, who might be relatives living in the US or foster parents assigned by the government and adoption agencies such as Bethany Christian Services.
A spokesperson for the Department of Homeland Security (DHS) did not provide a direct response to the Guardian’s query about how many children are still separated from their parents. Instead, that representative said that over 3,300 families have been reunified.
In some cases, reunification means a child was deported to their home country where their parents were previously deported. In other cases where separation persists, very young children were taken from their parents and have since spent years with foster families in the US. And rather than taking the risk of re-traumatizing their children, some deported parents have made the difficult decision to allow their children to remain in the US without them.
“Because of our efforts, every eligible family who has expressed interest has been reunified or is in the process of being reunified,” the spokesperson said. “[The Biden] administration will continue working through its last day to reunify every family separated by the previous administration.”
Despite a lack of information and deeply complicated logistics, Gelernt said many parents were successfully found under the Trump administration, including those who were deported.
“But because there was no [legal] avenue for them to come back then, we couldn’t offer them anything,” Gelernt said. “And so in the years that elapsed, some of them went into hiding, changed phones, moved. We’re in the process of recontacting them now that we have something to offer them.”
Gelernt is referring to the Ms L settlement agreement the government entered into with the ACLU in December 2023. Under the agreement, for at least six years after the effective date of the settlement agreement, family separations cannot occur as a result of adults crossing the border without authorization. Families who qualify as class members, consisting of parents or legal guardians and their children who were separated at the US-Mexico border between 20 January 2017 and 20 January 2021, can also apply for benefits, including three-year work permits, six months of housing assistance, one year of medical care and up to three years of counseling. Some, including those with certain criminal histories or adults separated from children who weren’t their legal wards or biological children, don’t qualify. And an adult’s eligibility affects what services a child can access.
Is a Trump rollback coming?
The ACLU has referred to the Ms L settlement as the most important in the organization’s more than 100-year history. But for some immigration attorneys who have been tasked with representing separated families navigating the agreement, Ms L doesn’t go far enough – and it offers almost no protections during a second Trump term.
Under the agreement, nothing is guaranteed for class members – including parole, which allows recipients to legally remain in the US without the threat of deportation for three years. More broadly known as humanitarian parole, recipients can also obtain a work permit for three years or as long as their parole is valid. Depending on the state they live in, they may also be eligible for some public benefits, like cash assistance programs.
However, parole is up to the discretion of US Citizenship and Immigration Services (USCIS), and class members who are pursuing asylum merely have a path for requesting asylum. In the end, whether asylum is granted is also up to USCIS, a process that has taken and will probably continue to take years, given the agency’s current backlog and the failure to expedite the cases of separated families. And though the Ms L settlement says separations cannot happen for another six years, there is no certainty that the Trump administration will abide by its legal provisions.
“Families who were granted humanitarian parole for three years will be up for renewal under Trump,” explained the immigration attorney Carol Anne Donohoe. “Trump is talking about doing away with parole altogether, so what did we really do to protect these families?
For more than four years while working for the migrant support organization Al Otro Lado, Donohoe represented hundreds of families who were separated under the “zero-tolerance” policy in their effort to reunify. She was present at the August 2021 virtual meeting when Alejandro Mayorkas, the homeland security secretary, met with recently reunited families and listened to their stories, reiterating the administration’s commitment to identifying a long-term status option for families and to ensuring that family separations never happen again. The start of the Biden administration felt “encouraging”, the attorney said.
“Initially the tone was very much, ‘We are here to remedy the harm.’ But over time, there was a real evolution. Families increasingly had to prove themselves deserving of these benefits that the government was so benevolently giving to them. I’d watch Mayorkas make statements about the number of families reunified, but behind the scenes we were fighting denials for parents who were made to jump through hoops,” Donohoe said, noting the case of one father who could not reunite with his son for years despite “doing everything right”.
The Pennsylvania-based attorney was one of several who spoke to the Guardian to express frustration with both the limitations of the settlement agreement and the Biden administration’s failure to offer more substantial protections to families that survived the extreme trauma of family separation. However, she was the only one who was willing to speak on the record.
“It is good there is a settlement of some kind, and it’s good that the Biden administration has brought families back who were deported,” Donohoe said. Those families were allowed back in the country with parole, but coordinating their returns, including paying for travel, fell on advocacy organizations. “But without permanent protections, now they’re all just in limbo. In my opinion, there is no doubt that Biden – whatever his limitations – could have done better.”
The Biden administration on Friday extended Temporary Protected Status (TPS) for 18 months to 900,000 immigrants from El Salvador, Sudan, Ukraine and Venezuela. The TPS program, which provides temporary relief from deportation and work authorization, is available to immigrants whose home country has experienced a natural disaster, armed conflict or other extraordinary event. The program will certainly face challenges under the incoming Trump administration, and offers no safeguards to immigrant families paroled into the US – including those who were previously separated.
‘Will anyone even remember …?’
For advocates like Sara Huston who have watched from the sidelines as the Biden administration’s family reunifications have – as she said – “played out painfully slow”, there is also a growing sense of frustration on behalf of unidentified separated families and those who are outside the scope of the settlement.
“What recourse do they have for reunification?” asked Huston, a research assistant professor at Northwestern University and Lurie Children’s hospital in Chicago.
Huston is the founder of DNA Bridge, a non-profit formed to promote the ethical and secure use of DNA data to reunify families separated by immigration or conflict. The organization first began at the start of the Biden administration as a consortium of about 30 geneticists, physicians and human rights experts proposing a database overseen by non-governmental agencies that would include DNA from separated children and biological relatives. That genetic material would be used in conjunction with records and other documentary information to reunify families.
DNA databases have successfully been used to reunite families in other contexts, including those torn apart by El Salvador’s civil war and those disappeared by US–supported dictatorships in Argentina and Uruguay. Aníbal, who asked to only use his first name for fear of retaliation, was reunited through DNA with his birth mother in Uruguay in 2002. The 48-year-old said he was only 20 days old when the separation occurred, and he was raised by a family who aided in his parents’ disappearance.
“I heard about the use of DNA in cases of children appropriated by the dictatorship,” Aníbal explained. “The courts ordered its implementation, so in some cases it was compulsory. In others, like mine, we submitted of our own free will. DNA can be a very valuable tool, but a genetic bank is a very serious matter and I can understand feelings of mistrust around it – especially when your government commits the atrocity of separating families.”
While the idea of using DNA to reunite families attracted some attention after Huston and her colleagues published a paper on the subject, the proposal didn’t gain any traction within the Biden administration. And according to attorneys on the ground, most of whom expressed serious privacy concerns regarding the use of DNA, there is also no real need for a DNA bank. Among known cases, there are currently no instances in which a child is lost in the immigration system or it’s otherwise unclear who their family is. In fact, Gelernt told the Guardian that DNA has been a “crucial tool” throughout Ms L, though “to rebut claims by the government that the adult [in the case] was a trafficker and not in fact the parent”. Indeed, Republicans are currently pushing a bill that would mandate DNA testing at the border, arguing that asylum seekers travel with children who are not theirs in order to better their chances of gaining entrance into the US. Advocates say this legislation would only lead to more family separations in cases where family members and other caretakers are not the biological parents of the children they migrate with.
Donohoe said there were no quick options for reunifying the families who remain separated. Equally urgent is the fate of the families paroled into the US, who have not had the legal resources to request asylum, making them easy targets under the Trump administration when their parole expires or when they attend government-mandated check-in appointments. Many of these families came to the US to seek asylum. If deported, they face serious harm in home countries they fled.
“Once family separation was out of the headlines, for DHS and others, these families fell by the wayside,” Donohoe said. “I worry that after the first Trump administration, we’re desensitized as to the heinous things we allow happen to immigrants. As things ramp up under Trump again, will anyone even remember these families?”
