On Wednesday, Department of Justice lawyers and attorneys representing families that were separated at the border filed a notice in court announcing an agreement that would wind down the legal battle over Trump’s since rescinded family separation policy.
The agreement is imperfect, continuing to deny families some of the rights to which they would be entitled if they had never been separated in the first place. It will, though, at least restore some of those rights that were taken when the Trump administration unlawfully separated them at the border.
The agreement allows for a few key legal rights to be restored:
• Parents who have remained in the United States and whose children were taken from them will be able to have failed “credible fear” interviews reviewed, and have new evidence presented. They will also receive “due consideration” for the “psychological state of the parent at the time of the initial interview” in how reviewing United States Citizenship and Immigration Services officials will consider discrepancies between testimony in the two interviews. A lawsuit on behalf of these class members alleged that it was more difficult to pass that initial credible fear interview for parents whose children had been taken.
• Parents whose children passed a credible fear interview but who failed their own will be allowed to go through asylum proceedings with their children. The same will be true of children who failed to pass credible fear interviews when their parents succeeded. Going through proceedings together would be standard practice if the families had never been separated unlawfully.
• Parents will have the right to be with their children during new credible fear interviews and provide testimony on their behalf. The children will also be entitled to have a lawyer present. This would have been standard practice if the families had never been separated unlawfully.
• Lawyers for these families will offer their clients the opportunity to waive these rights and expedite their own deportations. This would be the opposite of what happened initially, when government officials used separated children as leverage to pressure parents to sign waivers authorizing their own deportation.
It’s important to note that of the more than 2,600 children who were separated from their parents, more than 400 have yet to be reunited. Most of the parents in these remaining separated cases were deported without the standard legal protections that the reunited families will now receive. And there are a number of rights that the families situated in both positions won’t get back:
• Parents who have been deported won’t be able to return to the United States to go through immigration proceedings with their children in the manner described above, unless granted an exception by the Justice Department.
• Families who are allowed to restart proceedings appear to be surrendering any right they might have under the Flores Settlement for the family to be released from custody together after a 20-day limit on child detention. A separate immigration judge recently upheld that consent decree, but according to the new agreement it would no longer seem to apply to families who were separated. (The Trump administration earlier this month proposed new rules that would seek to circumvent the consent decree for all migrant families and allow indefinite detention of minors with their parents, but that has yet to be litigated.)
• Families are surrendering any additional right to seek further civil claims, including on statutory grounds, over the circumstances of their unlawful separation.
The agreement still needs to be ratified by Judge Dana Sabraw, who this summer ruled that Trump’s family separation policy had been a violation of families’ due process rights and enjoined the government to end the practice and reunite separated families, a process that is still ongoing. After vocal public outcry, Trump himself had previously issued a separate executive order professing to end the practice. The Justice Department, meanwhile, has never appealed Judge Sabraw’s ruling that the practice was a constitutional violation and has cooperated with the ACLU in attempting to reunite families.
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