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Biden DOJ says Trump officials shouldn’t pay for migrant trauma

Then-Attorney General Jeff Sessions looks on during a Cabinet meeting in the Cabinet Room at the White House on Oct. 17, 2018.

OLIVIER DOULIERY/ABACA PRESS/TNS

By EDVARD PETTERSSON | Bloomberg News | Published: February 6, 2021

WASHINGTON (Tribune News Service) — Days after President Joe Biden announced a plan to help migrant families, his Justice Department finds itself fighting to get senior Trump administration officials off the hook for separating parents from their children at the border.

The department is defending officials, including former Homeland Security Secretary Kirstjen Nielsen and former Attorney General Jeff Sessions, from a lawsuit that seeks to hold them personally liable for the separations — a policy that Biden called “a moral and national shame.”

On Friday the department filed support for the previous administration’s request to dismiss the lawsuit — which was brought by the American Civil Liberties Union in 2019 on behalf of thousands of families separated at the Arizona border.

Unlike in many of its challenges to immigration policies over the past four years, here the ACLU argues that individual officials should pay for trauma and suffering they allegedly caused — and the advocacy group also seeks funding for mental health counseling. Allowing such claims against high-ranking federal officials to proceed would have profound policy implications and runs against Supreme Court rulings, the Justice Department said in its filing.

“Plaintiffs do not allege that they were separated due to the acts of some lone officer failing to follow the rules.” the U.S. argued. “To the contrary, the ‘conduct’ plaintiffs challenge was the creation, purportedly by defendants, of the rules themselves.”

The ACLU wants to hold Nielsen, Sessions and others liable in a “Bivens action,” after a 1971 U.S. Supreme Court decision that allows for damage claims against federal officers in their personal capacity for violations of someone’s constitutional rights.

But the highest court has more recently put limits on such cases, saying they shouldn’t be permitted beyond the few very specific circumstances under which they previously had been allowed.The Justice Department said in its filing that the ACLU suit is exactly what the Supreme Court doesn’t want.

Biden has already announced that his administration will overhaul a number of Donald Trump’s immigration policies. ACLU lawyer Lee Gelernt said Thursday that the group would pursue its lawsuits but was open to settlement talks.

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