Immigrant families separated under Trump policy to get another bid at asylum
Hundreds of immigrant parents separated from their children at the southern border under one of President Donald Trump’s most controversial policies will have a second chance at asylum, according to a proposed federal settlement a San Diego judge considered Friday.
The tentative agreement would give as many as 1,000 parents, most of them fleeing gang violence or poverty from Central America, another opportunity to stay here legally. U.S. District Judge Dana M. Sabraw indicated he would likely approve it, barring any objections, calling it a “very detailed, well thought-out proposal.”
Coming two months into an expensive, complicated and time-consuming emergency effort to reunify families under the court order, the settlement is the latest indication of the widespread failure of the short-lived policythat briefly imprisoned parents for the misdemeanor of illegally entering the country and placed their children in federal shelters. Polls showed a majority of Democrats and independent voters opposed the practice, which was also met by furious bipartisan and international condemnation.
“It’s an implicit recognition by the government that they did it wrong,” said Simon Y. Sandoval-Moshenberg, legal director at the Legal Aid Justice Center, an advocacy group in Virginia representing separated parents.
Under the government’s so-called “zero-tolerance” policy, more than 2,600 children, including at least 103 under the age of 5, were removed from their parents. Months later, 165 children still remain in federal custody after their parents were deported. Hundreds of parents were removed without knowing where the government had sent their children. Dozens of deported parents have yet to be located.
Lawyers for the families argued in part that separated parents were unable to properly express their fear of returning to their country, which is the first step in obtaining asylum, because they were so concerned about the well-being and whereabouts of their children.
“Parents were sick, anxious, light-headed, dizzy. They couldn’t remember what had happened in their credible fear interview. All they could think about was their children,” said Sirine Shebaya, senior staff attorney for Muslim Advocates, a civil rights advocacy group in Washington, D.C., that represented parents. “They were out of their minds with worry and this is not a psychological state in which they could participate meaningfully.”
To qualify for asylum, applicants must prove they faced persecution because of their race, religion, nationality, membership in a particular social group or political opinions, and the Trump administration has made it significantly harder to obtain refugee protection.
The settlement would allow those separated parents who remain in the United States, whether they are in federal detention centers or have been released with their children to await their civil deportation cases, to undergo another asylum interview. Parents who fail that second credible fear assessment would be able to remain here while they help their children argue for asylum, and could be included in their children’s cases if the minor’s claim is deemed credible.
“They are essentially getting two more shots,” Sandoval-Moshenberg said. “We couldn’t guarantee that through this agreement every single one of them will get asylum and get to stay, but at least this gives each one of them a fair shot.”
He said he was not aware of another class-action settlement that has allowed such a large group a second chance at asylum.
“The Trump administration will never be able to erase the full damage of its family separation policy,” said Lee Gelernt, an attorney with the American Civil Liberties Union, which brought the original lawsuit against the administration’s practice. “But this agreement is an important step toward restoring and protecting the asylum rights of impacted children and parents going forward.”
The automatic second bid at protection does not extend to the hundreds of parents who have already been deported, but the settlement grants those immigrants an opportunity to individually request such a chance, although it is unclear how many would qualify.
“The government does not intend to, nor does it agree to, return any removed parent to the United States,” the settlement said.
If attorneys for deported parents believe their cases warrant such a return, they could raise those arguments with the government, though such successful cases are likely to be “rare and unusual,” according to the settlement.
Michelle Brané, director of the migrant rights program at the Women’s Refugee Commission, a national advocacy group assisting the government in finding deported parents, said it remains unclear how that definition will be interpreted by the court.
“Removing parents without due process and under coercion is not the norm, and should not be the norm,” she said. “The hope is some will be allowed back. I do not think all of the parents want to come back. Some are so traumatized by the experience that if they do want to seek asylum or need protection, the U.S. may no longer be their first choice.”
As of this week, 114 deported parents have told Brané’s group and other nonprofits working to reunite families that they want to leave their children in the United States to give them the chance to pursue asylum without them.
“If they don’t want their child to go back, if they even prefer separation, those might also be people who are in fear and need some form or another of protection,” Brané said. “Those are the parents in many cases who may want to pursue another shot.”
As the effort to find deported parents continues, weekly government status reports to the court have shown just how complicated it is, especially when adults were forcibly returned to places they fled out of fear.
In court filings this week, the ACLU asked for more help to find separated parents, including placing bill boards and radio advertisements in Guatemala and Honduras, and obtaining local phone numbers to contact parents, who often are afraid to answer unknown numbers because it is common for gangs to run extortion schemes that way.
“We have reached the easy ones, the ones who are looking for us, the ones have telephones,” Brané said. “Those who are remaining are not answering their phones or not calling back or just unreachable. Some have no numbers, many may be wrong numbers, many don’t speak Spanish.”
In a few dozen cases the government itself has prevented family reunification because of purported “red flags” such as if the parent is accused of crimes that would make him or her a danger to the child.
The ACLU pushed back on some of those claims this week, arguing parents have wrongly been deemed unfit to rejoin their children. In one case, a Salvadoran mother was accused of being part of the violent MS-13 gang when she maintains she was their victim. She rented a room in a house raided by Salvadoran police, who charged her with being part of the group, even though she said the gang beat her and forced her to flee.
The woman’s 4-year-old son has been in a federal shelter for seven months and is suffering “irreparably,” according to the court filing. Once toilet-trained, the boy has reverted to wearing diapers and struggles to pronounce words.
Advocates for several children whose parents have opted to allow them to remain here with relatives and seek asylum asked the government Friday to speed up the process, or explain the delay in their release.
The administration is housing a record 12,800 immigrant children, most who came here alone and were not removed from their parents. Usually such unaccompanied minors are released to relatives or other adult “sponsors” after about a month in federal custody.
But data obtained by the New York Times this week shows that the number of such children released from federal shelters each month have plummeted by about two-thirds since last year.
Advocates have blamed in part a controversial new information-sharing agreement between Health and Human Services and the Department of Homeland Security that they say could frighten sponsors from claiming children because they worry their information will be used to deport them.
To accommodate all the immigrant minors in their care, the government said this week it would more than triple an El Paso tent camp opened at the height of the family separations and house as many as 3,800 children at a formidable expense.