Family separation: judge blocks Trump from deporting reunited families

Late Thursday night, a federal judge blocked the Trump administration from deporting any of the reunited families who were separated under the administration’s “zero tolerance” prosecution policy earlier this year, arguing that children reunited with their parents still need to be given the chance to seek asylum in the US.

The ruling was issued by Judge Dana Sabraw of the Southern District of California, in the case M.M.M. v. Sessions — a separate lawsuit from the one that’s compelled the government to reunify families, but one which is now being overseen by the same judge.

Sabraw’s ruling temporarily stops the government from forcing a parent to choose between waiving their child’s right to seek asylum so that the family can be deported together, and agreeing to be deported without their child so that the child can pursue their own asylum claim. It covers even those families where the parent already “waived” their child’s asylum rights (on a form some parents have claimed they were coerced into signing).

More than 1,000 families were facing that choice. Hundreds of them were facing imminent deportation, together, if the judge had ruled against the families.

Now they have at least one more week together in the US — in immigration detention — while the government tries to work with legal advocates on a plan that will keep families together without forcing anyone to waive their rights to seek asylum in the US.

Trump tried to get parents to waive children’s asylum rights to deport the family together

When the Trump administration separated parents from their children, as it did for more than 2,500 families (mostly between April and late June), it put parent and child on different legal tracks.

The child was designated an “unaccompanied alien child” — as if she’d come across the border on her own. Legally, that gave her the right to a full immigration court hearing to determine whether she’d qualify to stay in the US (by getting asylum or some other form of legal protection) — a process that can take months or years.

The parent, however, was put on the fast track.

After being criminally prosecuted with the federal crime of “illegal entry” (a misdemeanor), a parent who wanted to seek asylum in the US had one chance to pass a screening interview with an asylum officer, to show that he had a “credible fear” of persecution if deported. If he passed the credible fear screening, he was given a chance to seek asylum before an immigration judge; if he failed, he could appeal the decision to an immigration judge, with much worse odds. Lose the appeal — or agree to drop the case — and he was given an order of deportation.

So when parents and children were finally reunited after Judge Sabraw’s June order, many parents had already run out of options.

Of the 2,000 parents who’ve been reunited with children after Sabraw’s June order, about 1,000 of them had already gotten final orders of removal. Some of those probably never tried to seek asylum; others already lost both their credible fear screening and their appeal; and others likely agreed to withdraw their requests.

The Trump administration dealt with this by offering those parents a choice. They could choose to have their children deported with them, by “waiving” the child’s remaining legal rights. Or they could choose to allow their children to stay in the US and seek asylum (or another form of legal status), but be deported without them.

In practice, even that may not have been much of a choice: In late July, a group of parents reported that they had been coerced by Immigration and Customs Enforcement agents into agreeing to have their children deported with them, and had been forcibly re-separated — with no chance to say goodbye — when they refused to waive their children’s rights.

A group of parents had brought a lawsuit in the DC District on behalf of their children, arguing that the children had a right to be allowed to seek asylum — with their parents around. After a few weeks of legal wrangling (during which the government essentially agreed not to deport any families), the case was sent to Sabraw in California, to prevent the government from having to deal with the possibly contradictory rulings of two different judges.

And late on Thursday, Sabraw forcefully ruled in favor of the families. “The public has an interest in ensuring these children receive the process that Congress has provided,” he wrote. He ruled that even parents who had signed the form agreeing to have their children deported with them hadn’t actually waived their children’s asylum rights — because they hadn’t been adequately informed those rights existed.

This doesn’t mean families won’t have to choose reseparation or deportation. It just kicks that choice down the road.

Thursday night’s ruling was a temporary restraining order, in effect until Sabraw decides whether to issue a medium-term injunction against the government’s waiver policy.

In the meantime, Sabraw has instructed the two sides in the lawsuit — the Trump administration, and the lawyers bringing suit on the families’ behalf — to come up with a plan for how many families should be covered by his ruling, and for exactly which track (slow or fast) should be used for children’s asylum cases now that they’ve been reunited.

The ruling makes it much less likely that the government is going to be able to summarily deport hundreds of reunited families — a possibility that has worried advocates for some time — because parents “waived” their children’s cases.

But it doesn’t change the underlying fact that, no matter what happens to their children, the parents have already been ordered deported from the United States. The question right now is when they will actually be deported, not whether they will be. Some advocates claim that those parents only agreed to deportation orders because they thought it would help them see their children again — or that they would, themselves, have made better asylum cases if they weren’t traumatized by separation. The new ruling does nothing to address that.

And even if parents are allowed to stay in the US for months while their children pursue asylum claims, there’s no requirement that the government release them from immigration detention. Sabraw’s clarified that the government has the right to force parents to choose between indefinite detention with their children and detention without them.

Detained families are already growing desperate; an uprising in one family detention facility led to the re-separation of several families this week, according to government officials and the advocacy group RAICES.

Last night’s ruling offers a lifeline to the parents who have fought to allow their children to remain in the US. But there’s a tension between families who want to secure maximal due process and those who simply want to be free with their children again — even if that means deportation.

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