The Reunited

When I first spoke to David about the day US government agents took his son Arbi from him, the presidential elections felt a long way off. It was 2022 then, just before Thanksgiving. Sitting in his tiny apartment in San Diego, he cried as he recounted what an official had told him as he was forced onto a deportation flight in 2018: “Forget your son.” After they finally reunited in the US in 2021, it took Arbi months to treat him as a parent again. At first, he hadn’t even wanted to give his father a hug.

David and Arbi were separated under the Trump administration’s “zero tolerance” policy, which ramped up criminal prosecutions of adults arriving at the US–Mexico border, leading to thousands of children being split from their parents. To reunite with Arbi, David had to leave his wife and daughters in Guatemala—another separation. That November, he was hoping against hope that one day the family would be whole again. Talking with him over the course of months for a New York Magazine story about family separation, I thought often about the consequences of these delays. Each passing day was more time they could never get back.

And each day, it turns out, was also bringing the country closer to a second Trump presidency. One of Trump’s first moves after winning reelection was to offer prominent administrative roles to the architects of family separation, Tom Homan and Stephen Miller. “Welcome to the Golden Age of America,” Miller tweeted on November 6. A few days later, I reached out to an attorney who has worked for years to help reunify separated parents and children. “Our worst-case scenario is coming true,” she wrote back. When we spoke later in the month, David was on edge, uncertain what the news might mean for his family. “I don’t want to go through this again,” he said. 

Mainstream media outlets have always treated the Trump administration’s indiscriminate family separation as a special kind of harm—wrong on its face, unique in its cruelty, possible to condemn without violating professional norms around neutrality. The images and audio clips of those separations provoked global consternation, swift rebuke, and even a degree of bipartisan consensus—very rare, when it comes to immigration—that families shouldn’t be ripped apart this way. Over the last four years, the Biden administration has undertaken an unprecedented effort to find and reunify these families, expending considerable resources to do so—even as it veered right on most other aspects of immigration policy.

Now, however, that work could be undone. Under the second Trump presidency, even reunified families will be vulnerable to his apocalyptic immigration plans, because most of them have not been permanently protected against deportation. The Biden administration lumbered along picking up the pieces after Trump’s first term, but it did not seem to seriously contemplate what threats his second might pose. “A Trump administration is quick to do all of these things that hurt families, but then a Biden administration came in and very slowly tried to help families—and in part because of how long it took, families may not be able to get the help that they were promised,” a policy advocate told me.

After the election, a Russian woman named Kseniia told me that Trump’s victory brought back memories of 2017, when her husband, Mikhail, was separated from their three-year-old daughter after applying for asylum at the border. Two months later, Kseniia and their daughter were reunited in California, and Mikhail was able to join them that November. But the morning after Trump won, she said, she felt “the same as I had when I heard for the first time that my daughter was taken from my husband.” When Biden came into office, she remembered, “we were told that, okay, [you] are safe now, we agree that it was a mistake from our side and separation was a bad example of immigration practice…but right now, it all disappeared.”

In February 2018, as advocacy groups began to sound the alarm about separations at the Southern border, the ACLU brought a complaint against the US government on behalf of “Ms. L,” a Congolese woman whose daughter had been taken away from her a few months prior. As the director of ICE, Homan was the first Trump official named in the complaint. 

By March the ACLU had widened their lawsuit to challenge the very practice of forcible family separation. That June, after widespread fury led Trump to sign an executive order ending separations, the judge on the case ordered the administration to begin reunifications immediately. Yet Trump’s Department of Justice continued to fight the lawsuit, releasing information only under duress; when Biden took office in 2021, the two parties began to work out a settlement. 

In October 2023 the ACLU and the Biden administration finally reached an agreement in the Ms. L case. It provides reunited families with resources like behavioral health support and basic housing assistance, lays out the circumstances under which families can and cannot be separated at the border, and affords families who had been separated under Trump some benefits unavailable to other asylum seekers. They can, for instance, move to close their “defensive” asylum cases, which require them to face a government prosecutor before an immigration judge, and reapply for asylum before a US Citizenship and Immigration Services officer in an “affirmative” case—more an intense interview than a court date. They can also apply to have their cases expedited, thereby hopping over the immense backlog.

All this allows reunified families the chance to pursue a pathway to permanent residence, but some advocates who have worked on family reunifications for years worry that these remedies will be difficult to access in practice. At this point, the timeline is compressed; it’s conceivable that asylum offices won’t grant requests to expedite cases once Trump is back in office. And both processes remain opaque and challenging to navigate, especially without an attorney. 

Meanwhile, it’s still up to the individual immigration judge to end a family’s deportation proceedings and close their “defensive” case. Under Trump, “there could be a directive to the immigration judges not to terminate cases,” Erika Pinheiro, the executive director of the migrant rights organization Al Otro Lado, told me. Pinheiro is frustrated that the government hasn’t done more to safeguard families, even now that Trump’s return to office is a certainty. “DHS could make motions to terminate all the cases,” she said. “But the work is put on civil society, or the parents themselves.” (When I asked DHS about this, a spokesperson declined to comment.) 

Lee Gelernt—the deputy director of the ACLU’s immigrants rights project and the lead attorney on the Ms. L lawsuit—has often said that he had hoped, during Biden’s tenure, for more government action in support of these families. Congress, he has suggested to me, should have passed a law granting formerly separated families permanent status in the US. There may have been a period where this was possible; in today’s political climate, it comes off as fanciful. Gelernt maintains it should be done, but when we spoke in November he told me that “we have no illusions.”

In the absence of congressional action, reunified families have been left to pursue individual asylum claims. As they do so, they can apply to stay in the US under the protection of humanitarian parole, a form of temporary legal status that Biden has also extended to over a million other migrants from places like Ukraine, Venezuela, and Afghanistan. Once they receive parole, they can also get work permits. But many will have to renew both visas in 2025 or 2026, under more hostile circumstances. “Parole is an incredibly discretionary authority that the executive branch has,” Conchita Cruz, the executive director of the membership organization Asylum Seeker Advocacy Project (ASAP), told me. During his first term Trump did not grant a single person humanitarian parole, and he said during his campaign that he would put a stop to the “outrageous abuse of parole” if reelected. 

Even if the next administration does deny parole and work permit renewals, it can’t legally expel anyone with an open asylum claim—but that’s hardly a balm, considering the scale and sweep of the deportation dragnet that Trump and his cronies have vowed to cast. In “a worst-case scenario,” Michele Waslin, an expert on immigration policy, told me, “they could choose to deport asylum seekers without any due process.” Asylum, meanwhile, is no certain destination at the end of a long and exhausting journey. For some, it will just be a mirage. 

Sharen, a Honduran woman I spoke to recently, was separated from her six-year-old daughter, Alisson, in 2018. When they were reunited after two months, the social workers wouldn’t let Alisson out of the car until she identified Sharen as her mother, but the little girl wouldn’t respond. “There was no happiness at all, she wouldn’t hug me or call me mami or anything, she just had this bitterness in her eyes, and tears pouring down her face,” Sharen said. It’s been six years since then, but Alisson is not the same child she was before the separation. In old photographs she’s carefree, riding around on her bike or playing soccer. Now Sharen’s aunt calls her amargadita. “She has utterly changed,” Sharen said to me twice.

On the day of the election, Sharen told me, her youngest son came to her and asked, “Is it true that Trump is going to deport us?” People at school, he told her, had been saying that Trump was going to win. “He doesn’t like us because we were born in Honduras, he said, so he’s going to send us back there—I want to know if you’re going to come with me or if I’m going to go all by myself,” Sharen recounted. 

“I told him you shouldn’t be afraid—because I have a therapist and they were talking about how you have to focus on positive things with the kids because it gets the trauma out of their heads,” she said. She got out his work permit and showed it to him. “See, you guys have your permit. Don’t worry for now.” But the family’s work visas and humanitarian parole both expire in 2026. In private, Sharen wonders whether they will be renewed.

There is a strange irony to her predicament. Had the Honduran government separated Sharen from her child, that act might have constituted the sort of state persecution that merits asylum in the US. But because she’s seeking shelter from the government responsible, it holds no weight in the evaluation. “It doesn’t seem,” Pinheiro said, “like the act of separation itself fits within the rubrics of asylum eligibility at all.” 

Already, asylum rates are geographically contingent: David, Kseniia, and Mikhail are likelier to be better off in California, or Sharen in New Jersey, than families who ended up in Texas. And some parents, of course, have stronger cases than others. Yet a strong case does not in itself guarantee asylum. A new Boston College Law Review study shows that credible applicants are routinely denied asylum on legal technicalities. The standard for evidence can be extremely high, and some judges and offices are stricter than others. In their recent book Private Violence, Waslin and her coauthor, Carol Cleaveland, recount the story of a Salvadoran woman who was repeatedly raped by a gang member and eventually brought into the prison her rapist was held at for forced visits.¹ In granting the woman asylum, the immigration judge noted that, had agents of the state not witnessed these assaults, he would not have considered her to have met her burden. This was under Biden.

The new administration is all but guaranteed to restrict eligibility and generally throw sand in the gears. “Someone who might have won their claim this year might not win their claim next year,” Cruz said. The executive branch has a great deal of power to shape asylum law: during the last Trump administration, for instance, Attorney General Jeff Sessions removed domestic violence and gang violence from the list of qualifications. (Biden’s DOJ reversed that decision, but there are signals it could be overturned again: Project 2025 argues that Congress should at minimum codify Session’s ruling—and ideally eliminate altogether the “particular social group” category, which encompasses groups like LGBTQ people and ethnic minorities, and forms the basis for about one third of all asylum claims.) There were also pettier cruelties. “They started denying people because they left something blank in their application rather than writing n/a,” Waslin told me. “If you filled it out with the wrong pen color or something like that, they could say, Nope, sorry.” 

If families do succeed at getting their defensive proceedings closed, they’ll have a better chance at getting asylum with the “affirmative” procedure, but neither is that process impervious to a hostile administration. “Asylum officers also have a lot of discretion as to when they will not grant asylum,” Waslin said. “Within an administration that wants to really decimate the entire asylum system,” those officials could “have an attorney general telling them not to grant asylum, or changing the criteria, or putting pressure on them.”  

Even as these families move forward and try to rebuild their lives, they still experience separation in an eternal present tense. Now there is a chance that they might be forced to literally relive it. When she woke up on November 6, Kseniia made call after call to try to access mental health support for her family. She told me that her husband “worries that our children can be taken from us again, and it becomes more and more difficult to let them go even to school…. It’s constant feeling that it’s possible that we will not see them again.”

Kseniia’s way of dealing with this uncertainty is to engage as much as possible in the family’s asylum case—just as she furiously tried to find her husband and daughter after they were separated. “It’s a feeling like I had in 2017 when I needed to get all my family back,” she told me. After a morning on the phone, she was able to set up a group counseling appointment. But what is a therapist supposed to say to a parent who fears that their child could be snatched away at any moment, not only because of past trauma but also because they have rationally assessed what the future may hold?

Then there are the reunions themselves. They began piecemeal in 2018 as advocates embarked on the herculean task of hunting down parents with almost no information to go on, thanks to the Trump administration’s horrendous record-keeping. Back then, many mothers and fathers who had not been deported tracked down their kids without the government’s help, while deported parents’ only legal option for reunification was to request that their children be repatriated to their home countries. In 2021 Biden formalized and expanded the process by creating a Family Reunification Task Force, which finds and helps deported parents return to the US to reunite with their kids. The task force’s work remains unfinished: Gelernt, of the ACLU, estimates that around a thousand families have not yet been reunified. 

The Ms. L settlement mandates that these reunifications continue. It’s normal for such a delicate agreement to take time—but because it was only finalized a year ago, some of its remedies have only become available in the waning months of Biden’s presidency. Its terms even expanded the number of families it covers, for instance by allowing people to apply to join the settlement class even if they had initially been excluded because of spurious or minor criminal convictions—in some cases mere allegations—or gang associations; one ACLU court filing described a woman who was put into this latter category after being raped by a gang member in front of her son. In other words, people are still just becoming eligible for reunification now, some six or seven years after they were separated.

Legally speaking, the next administration must comply with the settlement and continue these reunions. But “given the statements we’ve heard from various people in the Trump camp about family separation,” Gelernt told me, “we are very concerned that they will disband the task force.” The ACLU, he stressed, will return to court as many times as it needs to enforce the settlement’s terms. Still, any intransigence on the part of the Trump administration here will doubtless disrupt an already fraught process and further delay reunions.

The organizations working on reunifications have urged the task force to pick up the pace and reunify as many families as possible before January 20. But sources told me they haven’t seen any such shift, even after the results of the election became clear. On the contrary, there is at least one sign that the administration has deprioritized this work: the task force is supposed to release a new progress report every sixty days, but there has been none since April. (DHS, which chairs the task force, would not respond to my questions about this delay or whether a report is forthcoming. A spokesperson emphasized the reunions that have already been completed and added, “This Administration will continue working through its last day to reunify every family separated by the previous Administration.”) 

Recently Pinheiro has also seen asylum offices deny humanitarian parole to additional family members—say, the mother and sister of a child who was separated from his father at the border—in greater numbers. Al Otro Lado has spent time contesting these rulings that it might have otherwise dedicated to reunifications. “Now we’re really down to the wire,” she said. “We are working as quickly as possible to file as many petitions as we can to bring families back before January, but I don’t know that we’ll have enough time.” 

After nearly four years in power, the Biden administration has also failed to conduct investigations into official misconduct by members of Trump’s first administration, angering advocates who had hoped that the architects of zero tolerance might face accountability. After all this time, despite exhaustive accountings of who did what when, the only people who have been incarcerated in connection with Trump’s family separation policy are the parents themselves.

When zero tolerance comes up in the news, it’s often attached to the question of whether the indiscriminate family separations at the border in 2018 could happen again. Anyone who was horrified by the sight of children being ripped from their parents’ arms will have plenty to agitate against this time around: “Part of the discussion around mass deportation is a discussion about family separation,” Cruz said. It’s worth noting, too, that families have continued to be separated at the border even after Biden took office, largely owing to narrow definitions of the “family unit” that make it possible to split apart young adult children from their parents, grandparents who serve as primary caregivers from their grandchildren, and even spouses from one another. These cases are perhaps not as extreme or shocking to the public as the separations engendered by zero tolerance, but they are hardly less painful to live through.

Theoretically, the Ms. L settlement should prevent the sort of wide-scale separation at the border that occurred under Trump. It lays out strict criteria under which families can be separated again, though Gelernt said that the Trump administration could conceivably try to “do an end run around the settlement” by blanket-classifying arriving families as dangerous to national security or public safety. “We will have to monitor what’s happening on the border very carefully, and if we see a significant uptick in the number of families being deemed national security or public safety threats and thereby separated, we will be back in court immediately,” he told me. 

At the same time, at least some prominent members of the administration do not seem especially concerned with what is and isn’t legal. Before the election, a CBS journalist asked Homan whether there was “a way to carry out mass deportation without separating families,” a nod to the many undocumented parents whose children have American citizenship. “Of course there is,” he replied. “Families can be deported together.” Recently, Trump has echoed that phrasing. Pinheiro warned me that “there’s no guarantee that the Trump administration will follow the law.” She began listing off ways that it could defy the structures that have been set in place to protect these families. “Or they can just round people up and deport them,” she finished. “How would we stop them?” 

One thing that stopped them in 2018 was public outrage. But that outrage may not flare up so readily this time. “Over the past four years, I’ve seen a sea change in American society with respect to how migrants are viewed—including the families who had been separated,” Pinheiro told me. “They don’t exist in a vacuum.” 

When we spoke in 2023, Gelernt reflected on the experience of testifying at two congressional hearings on zero tolerance four years apart. During the first, in 2019, even the Republican politicians were chastened. “It was just one of those things no one wants to touch, being in defense of taking little children and babies away,” he said. The second time around, in 2023, Marjorie Taylor Greene placed scare quotes around Trump’s “so-called separating children from their parents.” The families will never forget what was done to them, but the next administration may be betting that the rest of us have.