Trump Is Banned From Separating Families at the Border Again. Will He Fight It?

When Donald Trump becomes President again on Jan. 20, he will be legally barred from reviving one of the most controversial policies from his first term. Lawyers representing families who were separated at the border secured an eight-year ban on the practice, and are prepared to enforce it should Trump try to bring back the policy.

The unusual restriction was part of a settlement approved in U.S. district court last year between the Biden Administration and families who had their children taken away by border agents. Hundreds of children have still not been reunited with their parents. Trump—and any President who comes to office in the next seven years—is prohibited from going back to his policy of holding parents separately from their children during deportation proceedings.

The length of the ban was crafted partly out of concern that Trump might return to office, according to a person familiar with the negotiations. Trump has not ruled out separating families at the border again. When he was asked about it in November 2023 during an interview with Univision, he defended the policy, saying it had deterred immigrant families from crossing the border illegally. "It stopped people from coming by the hundreds of thousands because when they hear 'family separation,' they say, 'Well, we better not go.' And they didn't go," he said. Tom Homan, who pushed for the policy while running Immigration and Customs Enforcement and is Trump’s pick for “border czar”, told CBS News’ 60 Minutes last month that returning to family separations “needs to be considered, absolutely.”

Nearly 5,000 children were separated from their families by Trump officials in 2017 and 2018 under a policy called “zero tolerance” that was intended to speed adult migrants through the deportation process and send a harsh signal to other families thinking of crossing into the U.S. without authorization. The practice drew widespread condemnation, and in June 2018, Trump signed an executive order ending it.

The human toll of the effort has been considerable. The Trump administration did not keep records during the chaotic separations, and up to 1,000 families are still separated, according to Lee Gelernt, with the American Civil Liberties Union, who represented separated families in court. 

Gelernt says he and a team of lawyers around the country stand ready to defend the ban on family separations if Trump tries to return to the practice. “I am hopeful that the Trump administration recognized the outpouring from the American public and the worldwide revulsion to ripping little children away from their parents and will not try to separate families again,” Gelernt says. “But if it does we will be back in court immediately.”

The settlement, which came in the case of Ms. L v ICE, covers thousands of families and prohibits any administration from enacting another family separation policy before 2031, a period of time that extends beyond Trump’s second term. It also allows parents who were deported under the policy to temporarily return to the U.S. to be reunited with their children and seek asylum to stay in the U.S. It was approved by a federal judge in the U.S. District Court for the Southern District of California.

The ACLU is concerned that Trump could try to get around the settlement in less visible ways by slowing down the asylum process for the separated families covered under the settlement, or finding other ways to slow-walk the terms. But if Gelernt sees signs that the Trump administration isn’t adhering to the settlement, he plans to ask the federal judge overseeing the case to intervene. 

Trump could explore other ways to try and get out of a ban that was agreed to by his predecessor. Trump’s Justice Department could go back to court and directly challenge the ban and ask that the entire settlement be vacated. Gelernt predicts that would be “a losing battle” and that the courts would uphold the terms.

Gelernt is among a small army of civil rights lawyers preparing to spring into action if they view Trump’s immigration efforts as going too far. Over the last year, Trump has vowed to engineer a massive deportation effort, and said he may declare a national emergency on the border and use the military in border enforcement to help him achieve that goal.

“We have no choice but to prepare for almost anything at this point,” says Gelernt.