Government Agrees to Give Some Separated Families A Second Chance to Seek Asylum

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In a tentative partial settlement agreement reached with lawyers representing parents and children who were separated as a result of the Trump administration’s “zero tolerance” policy, the government has agreed to give thousands of parents and children a second chance to seek asylum.

Organizations have argued that parents were so traumatized by the separation from their children that they were unable to meaningfully participate in the asylum process. Now, thousands of these parents will be granted new credible fear interviews, allowing them to effectively restart the asylum process.

When a person expresses a fear of returning to their home country to an immigration official at the border, the government must interview the asylum seeker to determine whether they have a “credible fear” of persecution. If the government finds that the person’s fear is valid, they are placed into removal proceedings and can seek asylum in front of an immigration judge. If not, the government may deport the asylum seeker.

Under the new agreement, U.S. Citizenship and Immigration Services has agreed to give a new credible fear interview to any parent who was separated from his or her child, even if the parent had been interviewed unsuccessfully before. If the child has an independent asylum claim, they will also be given a new interview. Advocates expect that over 1,000 parents could receive new interviews as a result of the agreement.

The new agreement was reached between the government and plaintiffs in three different cases: Ms. L. v ICE, the ACLU’s lawsuit challenging family separation; M.M.M. v. Sessions, a lawsuit filed on behalf of children who were separated from their parents; and Dora v. Sessions, a case filed on behalf of parents who went through the credible fear interview process while still separated from their children.

During the family separation crisis, many separated parents did not pass their credible fear interviews. However, in an administrative complaint filed by the American Immigration Council in August, many parents expressed how the trauma of being pulled apart from their children affected the credible fear process.

“I could only think of my daughter,” wrote one mother who said that she “could not concentrate at all” on the questions asked during her credible fear interview.

Acknowledging the effect of family separation on parents, the new agreement recognizes that if there are any inconsistencies between a parent’s first credible fear interview and the second, that “due consideration will be given to the psychological state of the parent at the time of the initial interview.” In addition, separated parents will have the opportunity to have their lawyer present during any new interview.

The agreement also somewhat addresses the issue of parents who were deported without their children. The government plans to set up a process with the ACLU that may allow a limited number of parents who were deported to return to the United States to make a new asylum claim, although it remains unclear how many parents this will apply to.

The agreement is a major step towards finding a solution to the damage caused by the administration’s family separation policy. By providing new credible fear interviews and increased procedural protections for separated parents, the agreement will hopefully ensure that any parent who came to this country seeking asylum will be given a real opportunity to apply.

Now that the parties have submitted the tentative settlement agreement for approval, individuals who feel that the settlement doesn’t go far enough will have the opportunity to object. Some advocates have already expressed concerns that the settlement does not do enough to protect the rights of parents who were deported without their children. The settlement will not go into effect until approved by the federal judge hearing each case.

Unfortunately, efforts to hold the government accountable for family separation still continue. Hundreds of parents still remain separated and the administration continues to insist that a “zero tolerance” policy is necessary. While this agreement is a big step in the right direction, there is still a long way to go.

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