But, other separated families continue to face a tough road ahead
After more than a year of an informal and formal family separation policy — marked by the separation of almost 3,000 children from parents with no system to eventually reunite them, the prosecution and detention of parents for misdemeanors, and the deportation of several hundred parents with no plan for reunification — the Trump administration has finally conceded that many were effectively denied the legal right to apply for asylum.
If the settlement agreement filed last night is approved by the court overseeing this matter, children in the U.S. along with their separated parents who have not been deported will be provided a new opportunity to apply for asylum, including many parents who were tricked by immigration officials into signing away asylum claims based on the false promises by ICE agents that doing so would lead to being reunited with their children.
For deported parents, they will have an opportunity to apply to return, though it will not be easy. In addition, parents with “red flags” — many for vague reasons that do not comport with basic child welfare principles — face a long road ahead since they were explicitly left out of the agreement.
Dara Lind of Vox News provides a succinct summary of the proposed agreement:
- Parents who passed their initial “credible fear” interviews for asylum will be allowed to continue; this agreement doesn’t change those cases.
- Parents who had lost their cases and been ordered deported will be given a full review to reassess whether or not they have a credible fear of persecution. This review will include a second interview for “additional fact-gathering” — during which a lawyer can be present (or can dial in by phone). Parents will be allowed to do this even if they didn’t ask for a credible fear interview when they were first arrested.
- Parents who fail their credible fear screenings will be allowed to remain in the US and apply for asylum if their child passes his or her credible fear screening. The reverse is also true: If a child fails her asylum screening but the parent passes his, both parent and child will be allowed to apply for asylum. This is the way things normally work when families are apprehended together; by instituting it now, the government is essentially wiping away the legal side effects of family separation.
- Parents who aren’t eligible for a credible fear interview because they had been deported before and were returning will still be allowed to avoid deportation if they meet a higher standard (“reasonable fear”) and qualify for something called “withholding of removal.” Even if they fail that standard, they will be allowed to stay in the US while their children are going through their asylum cases.
- Parents who have already been deported will not have their cases automatically reviewed by the government. However, the plaintiffs in these lawsuits will have 30 days to present evidence to the government that particular parents should be allowed to return, and the government will consider those requests. (The agreement doesn’t make it clear whether deported parents will have their own cases reopened, or whether they will solely be allowed to return to stay with their children while the children’s legal cases are ongoing.)
Ur Jaddou, Director of DHS Watch, a project of America’s Voice, said: “Finally, there is a light at the end of the tunnel for some of the families that were severely harmed by the Trump administration’s cruel family separation policy. Although there is no way to turn back the clock on the trauma these families have already experienced, many will finally have the opportunity to apply for asylum, as they were legally entitled to do upon arrival. But for other separated families whose parents have already been deported, it will be an uphill battle. And for those that the government continues to call ‘red flags’ — many without regard to basic child welfare principles and process — they continue to face the same rough road against an administration that puts politics above the best interests of children.”