Originally published by The NY Times
The federal government last week completed reunifications of more than 1,800 migrant families separated under the Trump administration’s “zero-tolerance” policy, but immigrant advocates were set to be back in court Tuesday to block what they said was another imminent threat: plans to swiftly deport up to 1,000 of the newly reunited families.
In separate filings in San Diego and Washington, lawyers asked the courts to order a stay on deporting any of these families and to make sure parents are allowed to remain in the United States as long as needed to help their children pursue claims for asylum from unsafe conditions in Central America.
Judge Paul Friedman of the Federal District Court of the District of Columbia scheduled a hearing Tuesday on a request for a temporary restraining order to halt what could be hundreds of removals for parents who have already exhausted their immigration appeals — but whose children may well have better cases for remaining in the country.
Nearly 3,000 children were forcibly separated from their parents under the “zero-tolerance” immigration policy carried out earlier this year.
Critics say that many parents have been confused or coerced into signing forms that waive their children’s right to asylum in the hope of being reunited with them quickly. The latest court filings argue that parents have a right to remain in the country and help their children pursue their asylum cases.
“We want to make sure these kids are not summarily deported before they have a chance to apply for asylum. Their parents in many instances are the only ones able to articulate their fear,” said T. Clark Weymouth, pro bono partner at the international law firm that filed the case in Washington, Hogan Lovells.
Judge Dana M. Sabraw is considering a similar issue in the Federal District Court in San Diego. He is also considering the fate of an estimated 711 children who could not be reunited with their families because their parents were for various reasons deemed “ineligible,” including more than 460 parents who were most likely deported already without their children.
Government lawyers have argued that all parents were allowed to choose whether to waive asylum for their children and leave the country with them or allow the children to remain behind and pursue asylum cases. The Trump administration has accused adult migrants of using their children to secure entry into the United States.
Several lawyers for the latest plaintiffs spent time at detention facilities in recent weeks, Mr. Weymouth said, and concluded that without the legal challenge, there would be no impediment to the government deporting the children with their parents as quickly as possible.
“We had signals that was about to happen,” said Zachary Best, one of the lawyers.
The reason that children have different prospects for asylum protection has to do with the way immigration authorities handled their cases when they were separated from their parents at the border. Under the “zero-tolerance” policy, anyone who illegally crossed the border outside of a legal entry station has been referred for possible criminal prosecution. Under the previous family separation policy, later rescinded by President Trump, any child accompanying the adult was taken away and designated as an “unaccompanied alien child,” a classification normally used for adolescents who arrive at the border alone.
As a result of that designation, children are eligible for legal remedies independent of their parents. They can make an asylum claim before a judge and remain in the country until their case has moved through an immigration court, a process that can take years. If they do not demonstrate a credible fear of persecution in their home country on an initial interview, adults are often targeted for quick deportation. Adults who illegally cross the border, as opposed to surrendering to Border Patrol agents at a legal port of entry, are often not permitted to apply for asylum, though immigrant advocates have argued that they should legally be entitled to do so.
So complicated has the deportation issue become that it now appears that some parents who were reunited with their children in recent weeks have been separated from them once again — this time because they expressed a desire to allow their child to pursue an asylum claim.
A legal filing over the weekend alleges that several fathers, after being reunited with their adolescent children, were given three choices: to be deported with their children; be deported alone and allow their children to stay; or wait to consult a lawyer. They said that the first option had been pre-selected for them when they were handed the forms.
When they tried to choose the second option — to be removed from the country alone and allow their children to stay behind to pursue a separate asylum case — agents with Immigration and Customs Enforcement became angry at them, the fathers said in their court challenge.
The problem with the waiver form, their lawyers argued, is that it did not make the consequences clear — that by selecting the option to be deported with their child, a parent was waiving the child’s right to pursue asylum.
In the case of the fathers, all chose to be deported alone. In their declarations, they said they were not allowed to say goodbye to their children. The children, they said, had to wave to them from inside a bus.