PHOENIX (AP) — Despite President Joe Biden’s loathing of his predecessor’s practice of separating migrant families at the U.S.-Mexico border, his administration argued in federal court Tuesday that a lawsuit seeking money for five affected mothers and their children should be dismissed.

Justice Department attorney Phil MacWilliams told U.S. District Court Judge Susan R. Bolton the claims were improper and the case shouldn’t be tried. He argued that the Yuma, Arizona-based Border Patrol agents involved used their discretion to separate the families, not a policy aimed at deterring migrants arrivals.

Attorney Diana Reiter, representing the families, argued the case should go to trial because the separations were part of a bigger policy under then-President Donald Trump aimed at preventing migrants from arriving at the border. She noted that because the women were never prosecuted the separations were unnecessary.

Bolton will issue a decision in the coming weeks.

The U.S. government’s push to prevent a trial underscores the awkward position the Biden administration is now in as it grapples with its own problems managing migrant arrivals at the border.

The mothers and their children sued the U.S. government in 2019, seeking monetary compensation for the trauma they suffered the previous year when they were torn apart by the separation policy.

In 2021, the Biden administration participated quietly in settlement negotiations to end such lawsuits filed on behalf of parents and children who were forcibly separated under the Trump administration’s zero-tolerance policy. But U.S. officials withdrew from such talks in December 2021 and said it would instead defend each case in court.

The negotiations in cases involving hundreds of plaintiffs were carried out for months until The Wall Street Journal reported in October 2019 that the government was considering paying about $450,000 to each person affected by the policy. The Associated Press later confirmed that figure was discussed.

About 5,500 children were forcibly removed from their parents in 2018 under Trump as his administration sought to stop an increase in people crossing the U.S.-Mexico border, including migrants who showed up to seek asylum as the law allowed. Trump halted the family separation practice later that year amid widespread outrage.

Biden’s administration since reversed some of Trump’s actions designed to keep migrants from arriving at the border, including legally.

The American Immigration Council filed suit on behalf of the mothers and their children, who are also being represented by Reiter’s firm, Arnold & Porter, as well as the National Immigrant Justice Center, National Immigration Litigation Alliance, and Kairys, Rudovsky, Messing, Feinberg & Lin.

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SAN DIEGO (AP) — A federal judge on Tuesday ordered the Biden administration to lift Trump-era asylum restrictions that have been a cornerstone of border enforcement since the beginning of COVID-19.

U.S. District Judge Emmet Sullivan ruled in Washington that enforcement must end immediately for families and single adults, calling the ban “arbitrary and capricious.” The administration has not applied it to children traveling alone.

Within hours, the Justice Department asked the judge to let the order take effect Dec. 21, giving it five weeks to prepare. Plaintiffs including the American Civil Liberties Union didn’t oppose the delay.

“This transition period is critical to ensuring that (the Department of Homeland Security) can continue to carry out its mission to secure the Nation’s borders and to conduct its border operations in an orderly fashion,” government attorneys wrote.

Sullivan, who was appointed by President Bill Clinton, wrote in a 49-page ruling that authorities failed to consider the impact on migrants and possible alternatives.

The ruling appears to conflict with another in May by a federal judge in Louisiana that kept the asylum restrictions.

If Sullivan’s ruling stands, it would upend border enforcement. Migrants have been expelled from the United States more than 2.4 million times since the rule took effect in March 2020, denying migrants rights to seek asylum under U.S. and international law on grounds of preventing the spread of COVID-19.

The practice was authorized under Title 42 of a broader 1944 law covering public health.

Before the judge in Louisiana kept the ban in place in May, U.S. officials said they were planning for as many as 18,000 migrants a day under the most challenging scenario, a staggering number. In May, migrants were stopped an average of 7,800 times a day, the highest of Joe Biden’s presidency.

Immigration advocacy groups have pressed hard to end Title 42, but more moderate Democrats, including U.S. Sens. Mark Kelly of Arizona and Raphael Warnock of Georgia, wanted it to stay when the administration tried to lift it in May.

The ban has been unevenly enforced by nationality, falling largely on migrants from Guatemala, Honduras and El Salvador — in addition to Mexicans — because Mexico allows them to be returned from the United States. Last month, Mexico began accepting Venezuelans who are expelled from the United States under Title 42, causing a sharp drop in Venezuelans seeking asylum at the U.S. border.

Nationalities that are less likely to be subject to Title 42 have become a growing presence at the border, confident they will be released in the United States to pursue their immigration cases. In October, Cubans were the second-largest nationality at the border after Mexicans, followed by Venezuelans and Nicaraguans.

The Homeland Security Department said it would use the next five weeks to “prepare for an orderly transition to new policies at the border.”

“We continue to work with countries throughout the Western Hemisphere to take enforcement actions against the smuggling networks that entice migrants to take the dangerous and often deadly journey to our land borders and to address the root causes of irregular migration that are challenging our hemisphere as a whole,” the department said.

ACLU attorney Lee Gelernt said Sullivan’s decision renders the Louisiana ruling moot.

“This is an enormous victory for desperate asylum seekers who have been barred from even getting a hearing because of the misuse of public laws,” Gelernt said. “This ruling hopefully puts an end to this horrendous period in U.S. history in which we abandoned our solemn commitment to provide refuge to those facing persecution.”

Aaron Reichlin-Melnick, policy counsel for the American Immigration Council, an immigrant advocacy group, distinguished Sullivan’s ruling from the one by U.S. District Judge Robert Summerhays in Louisiana, an appointee of President Donald Trump, which applied only to how the Biden administration tried to end Title 42. Sullivan found the entire rule invalid.

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WASHINGTON (AP) — The Supreme Court waded into a political clash Wednesday between the Biden administration and Republican-led states seeking to defend a signature Trump-era immigration rule that the new administration has abandoned.

Conservative and liberal Supreme Court justices acknowledged during arguments at the high court that when a new administration comes in, it can change policy. That’s what the Biden administration did with the Trump-era “public charge” rule that denied green cards to immigrants who use food stamps or other public benefits.

The question for the court is not the legality of the now defunct Trump-era rule, just whether a group of states led by Arizona should be able to pick up the legal fight over it.

Justice Elena Kagan suggested to Arizona Attorney General Mark Brnovich, arguing for the group of states, that allowing the group to intervene in a case “that’s completely dead that never applied to you in the first place” is not the answer. “Whoever the federal government is, there’s always going to be a state that thinks it’s done the wrong thing,” she said. Other justices suggested a limited right to intervene might be possible.

Kagan, for her part, did question whether the Biden administration had erred by maneuvering to quickly jettison the Trump-era rule rather than going through a longer process. Justice Samuel Alito said the administration had devised a strategy to quickly set aside the rule and he wasn’t “aware of a precedent where an incoming administration has done anything quite like this.”

Kagan and other justices suggested that if Arizona objected to the way the Biden administration ended the previous policy, however, it should have brought that issue to a court rather than attempting what Kagan described as a “quadruple bank shot” strategy to intervene in other cases.

Another issue for several of the justices: geography. Stephen Breyer, Clarence Thomas and Sonia Sotomayor were among the justices who questioned why Arizona belongs in a case that has its origins in California and Washington. “I’ve seen how Los Angeles has spread, but I don’t think it’s yet spread to Arizona,” said Breyer, who last month announced his plans to retire from the court.

At the center of the case before the justices is a federal law says that green card applicants can’t be burdens to the country or “public charges.” But the Trump administration significantly expanded the definition, saying the use of public benefits including food stamps or Medicaid could be disqualifying. That led to court challenges, but the Supreme Court allowed the policy to take effect while those continued.

The Biden administration rescinded the rule and has since announced new guidelines. The administration says that in practice, in the year the rule was in effect, it only affected about five out of some approximately 50,000 applications it was applied to. The Biden administration and immigration groups have said the bigger impact of the rule was scaring immigrants, causing them to drop benefits or not enroll in them because of fears doing so could affect their applications to become legal permanent residents.

Despite the political nature of Wednesday’s arguments, they did underscore one point of agreement between the Trump administration and the Biden administration. In the case of the public charge rule, a single federal judge in Illinois ruled to block the policy nationwide. The Trump administration had criticized similar nationwide injunctions by a single judge blocking a policy nationwide, calling them unlawful. Attorney Brian Fletcher, representing the Biden administration, said that view is shared by the new administration.

In addition to Arizona, the states involved in the case are Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas and West Virginia.

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