An anxious mother, detained in a separate facility from her son, is informed that authorities had lost track of him.  A devastated father is deported without his child.  A crying child is ripped from his father’s arms and put into a cage-like metal cell.  These Proskauer clients – all escaping violence in Central America – suffered those horrors not in their home countries but in the country where they sought asylum, in the United States.

Beginning in 2017 as a pilot project, the U.S. government began splitting thousands of families in an effort to deter immigration across the southern border.  The practice became official in 2018 through the government’s “zero tolerance” policy which called for the detention and prosecution of all individuals – including those seeking asylum – who crossed the border anywhere other than an official port of entry.

While national outrage prompted an official end to the policy, the government did not stop, and to this day continues to separate families.  In total, over 5,500 children have been separated from their parents since 2017, at least 1,100 of whom were separated after the policy officially ended.  Tragically, the parents of 666 separated children still have not been found.

When I first learned of the government’s practice to separate families I volunteered for a week at an immigration detention center in Texas, and the following year at various shelters in Mexico.  I worked with colleagues at the firm to develop pro bono opportunities, and was thrilled to be introduced to the Asylum Seeker Advocacy Project (“ASAP”) and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (“LCCRSF”).  Proskauer now collaborates with ASAP and LCCRSF to file administrative complaints under the Federal Tort Claims Act (“FTCA”) on behalf of families who had been separated at the border.

The FTCA enables individuals to sue the U.S. government for injuries arising out of the actions of its employees.  To initiate a lawsuit, the claimant must first file an administrative complaint with the relevant government agency.  These complaints are important and impactful because they provide a chance for compensation, create a record of government misconduct, and hold out hope that the government will one day be held accountable.

The FTCA complaints we have filed thus far paint a reprehensible picture of abuse and mistreatment at the hands of U.S. government employees.  Although each complaint tells a unique story, many share the same heart-wrenching images: children shrieking as they are separated from their parents without warning or explanation; detainees caged and denied medical care; parents pressured to sign deportation papers that guards refused to translate.  Some parents and children were detained separately for weeks. Other parents were deported without their children.  Adults repeatedly begged for information regarding their children’s whereabouts and safety.  Some children were told they would never see their parents again.  These complaints recount the plight of individuals who had fled danger to seek asylum in the U.S. only to find terrible cruelty.

Family separation is not only cruel, it has serious, lasting effects on victims.  Adults and children often experience depression, anxiety, and PTSD.  The mental health impact on children is particularly detrimental.  These early traumas can cause dramatic, irreparable damage to children, increasing their risk of developing a host of medical problems and psychological disorders.

Separating families violates domestic and international law.  It disregards the claimant’s constitutional rights to family integrity and against unreasonable seizures.  It breaches U.S. obligations under international law governing refugees and human rights conventions.  Human rights advocates have stated that family separation constitutes torture.  Fundamentally, separating families hurts all of us because it threatens our shared values and undermines our identity as a nation grounded in decency and the rule of law.

We look forward to our continued work with ASAP and LCCRSF as we seek justice for the victims of this unconscionable practice.

The author wishes to acknowledge former Proskauer Summer Associate Claudia C. Khoury-Yacoub for her significant contributions in drafting this blog post.