The Justice Department wants a federal judge to require psychological examinations of some families separated at the US-Mexico border under the Trump administration as part of an ongoing lawsuit against the US government.
The request comes after the Biden administration walked away from settlement talks late last year and has raised concerns among attorneys about re-traumatizing parents whose kids were torn away from them under the controversial policy.
“This is where the government was headed as soon as the announcement came down,” said Conchita Cruz, co-executive director of the Asylum Seeker Advocacy Project, which is representing separated families in similar cases. “They were headed toward re-traumatizing these families.”
In 2018, the Trump administration announced a so-called zero tolerance policy, in which the Justice Department initiated criminal prosecutions of every adult illegally crossing the border. The policy, which was ended after widespread opposition, resulted in the separation of thousands of families, including those with infants, some only a few months old, because children can’t be kept in federal jail with their parents.
The Physicians for Human Rights likened it to “torture,” and the American Academy of Pediatrics told CNN the Trump administration’s practice of separating families at the border was “child abuse.”
Some families have since filed lawsuits seeking damages for the toll the separations took on them. The American Civil Liberties Union filed a class action lawsuit in 2019 and attorneys representing families have filed separate claims as well.
President Joe Biden, who’s condemned the Trump administration’s family separation policy, previously endorsed the idea of the US government compensating migrant families separated at the border, saying the previous administration’s “outrageous behavior” warrants cash payments – but he didn’t go into detail about specific amounts.
Last December, the administration broke off settlement talks and went back to court.
Now, in a case concerning five asylum-seeking mothers and their children, DOJ submitted its request for psychological examinations, calling it “standard practice” in its filing and citing a similar case pending in Florida where a parent and child were examined.
In the filing, DOJ recognizes the anxiety, trauma and emotional distress separation caused on the parents, but says its selected expert should also examine them.
“Plaintiffs intend to support their claims of injury through expert testimony and have each submitted to multiple mental health evaluations by their own expert. It is standard practice for plaintiffs alleging severe emotional injury to be examined by the opposing party’s expert; indeed, in a similar family-separation case pending in the Southern District of Florida, the adult plaintiff consented to an examination by the United States’ expert under the same terms that the United States proposes here,” the filing reads.
The exam would consist of a clinical interview and a testing portion that includes a personality and emotional function test and a trauma-specific test, according to DOJ.
The Justice Department’s response in the case may be a blueprint for similar cases from migrant families against the US government.
“It’s bad enough that the Biden administration has not provided a meaningful settlement to the families separated under the Trump administration for the brutal treatment they received, but now the Biden administration is using taxpayer dollars to hire doctors to try and diminish the harm,” said ACLU attorney Lee Gelernt.
“That is hardly consistent with President Biden’s statement that the separations were criminal and an historic moral blemish on the nation,” he added.
The Asylum Seeker Advocacy Project is representing six families who were separated at the border in similar cases and assisted hundreds of other lawyers who are filing monetary damages lawsuits. Attorneys have warned families who are part of these lawsuits that they may face depositions and potential examinations but viewed it as a worst-case scenario.
“This is very aggressive. This is the thing that the Trump administration would’ve done and did do,” Cruz said, citing a case litigated under the Trump administration where a mother was deposed in a similar case.
The trauma experienced by families has been extensively documented in studies by outside groups as well as by the federal government.
Outside groups and a government watchdog have found over the years that children separated from their families under the “zero tolerance” policy experienced trauma. A 2019 Health and Human Services inspector general report included accounts of facility staff detailing the inconsolable crying of children when they were separated, confused and believing they had been abandoned by their parents.
The Biden administration has committed to helping reunite families as part of a family reunification task force and providing services to help those affected by the policy. Since the creation of the task force, 487 children have been reunified with their parents in the United States, according to a September court filing.
Attorneys are still searching for the parents of 151 children, the filing says.
As part of the effort, the Department of Homeland Security has established a process for accepting parole requests, the Department of Health and Human Services is working on facilitating services to support families and the State Department is developing a streamlined system for processing in-country travel document requests.