DHS Secretary references possibility of separated parents returning to U.S.—03-05-21

Immigration news, in context

This is the seventieth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we explore the possibility of parents separated from their children returning to the U.S.

  • In Under the Radar, we look at how administrative delays have stopped refugees from coming to the country.

  • In Next Destination, we examine a report about how immigration authorities have continued deportations to Haiti despite acknowledged danger.

The Big Picture

The news: Homeland Security Secretary Ali Mayorkas said in a press conference this week that the government remained committed to reuniting families separated under the Trump administration’s zero tolerance policy and would “explore lawful pathways for [families] to remain in the United States and to address the family needs.”

What’s happening?

The legal status and options available to parents who were already deported without their children has long been an elephant in the room for the efforts to remedy the impact of the separations of more than 5,000 asylum-seeking children under Trump’s border policies. To briefly recap, over a period of about two months in 2018, and in more limited pilots going back to 2017, the federal government began prosecuting every adult detained after crossing the border, asylum claims notwithstanding.

Being put in criminal custody triggered the separation of parents from their minor children, who could not go into such custody. Children’s cases were essentially split off from their parents’, netting them the same status as if they’d entered alone. The Trump administration discontinued the policy in June 2018 in response to enormous public backlash, and subsequent court orders have prevented the federal government from instituting any such policy again and ordered parents to be located and reunited with their children. (For a more detailed history, see below.)

The trouble is that hundreds of parents, particularly those who were separated under the earlier pilot programs, had already been deported by the time the rulings came down. By and large, presuming they’re found (hundreds are still being looked for), their options for reunification are limited. The settlement generally provides for reunification only in countries of origin, because there aren’t clear legal avenues for parents to return. Per 8 U.S.C. 1182(a)(9)(A)(i)—part of the section laying out the various grounds of inadmissibility to the United States—anyone who has been deported either under expedited removal or regular removal proceedings started immediately after their arrival in the country is inadmissible for a period of five years.

This means they can’t apply for admission to the country at all, unless they obtain a waiver. The waiver rules are complex and there’s no set process for them to be granted to previously deported asylum-seekers hoping to relitigate their cases, though the law also doesn’t preclude the government from issuing waivers to people with only that ground of inadmissibility. Separately, people who have been denied asylum generally can’t reopen their cases or apply for asylum again unless they’re able to demonstrate either changed conditions—which most won’t, as the nature of their reason for fleeing and the conditions on the ground won’t have measurably shifted—or that there were procedural issues with their proceedings. In the case of asylum claims determined to be legally “frivolous,” they could be barred from ever seeking asylum again.

One could of course make an argument that practically all proceedings in immigration court have procedural issues, in the sense that they have executive branch judges, don’t guarantee counsel, have bizarre and unintuitive filing rules, and generally don’t feature safeguards to due process. For legal purposes, though, all of this is the “normal” functioning of the process. The plaintiffs’ attorneys in Ms. L v. ICE case (which is the federal case resulting in the reunification order) have been able to secure the return of a handful of parents who’ve been determined to not have been able to provide full testimony in their asylum interviews or otherwise faced obstacles even beyond the already steep allowances. This, however, is the exception, not the rule.

Where this leaves most deported parents is in a position to have to decide whether to leave their kids in the relative of the United States or be reunited with them in the places that they had fled in the first place, i.e. have them sent back to potential danger. The Trump administration often touted the fact that a large percentage of parents voluntarily decided not to reunify as evidence that their claims were mostly frivolous and they just wanted to get their kids into the country. In reality, it’s a reflection of this impossible choice: many would prefer their children to live in safety, even if it means a permanent separation.

The organizations involved in the settlement’s steering committee and other advocacy groups have long been pushing for a solution that would permit the bulk of parents to return and obtain permanent status in the U.S. With the creation of Biden’s new family reunification task force and Mayorkas’ confirmation as DHS secretary, it seems the government is considering its options. That said, his comments were not exactly a commitment to doing this; rather, they are a commitment to “explore lawful pathways,” and the administration may well decide that there are no practical such pathways.

How we got here

The Trump administration’s family separation policy officially began in mid 2017 with a pilot program in the El Paso, Texas Border Patrol sector. Those separations, first unveiled by former Houston Chronicle reporter Lori Kriel, were triggered by prosecutions for crossing the border without authorization, a federal misdemeanor. As a reminder, immigration cases are adjudicated in civil courts. Prosecutions for illegal entry, meanwhile, are criminal proceedings. Similarly, immigration detention is “civil” detention, but when someone is prosecuted for illegal entry—or any other crime—they’re taken into criminal custody, meaning their children can’t come with them.

Using these prosecution as pretext, the administration was able to separate migrant families who crossed without authorization in El Paso sector, and later across the entire border region. The 2017 pilot program was the lead-up to the 2018 “zero tolerance” family separation policy, whose stated goal was to deter migrant families from asking for asylum in the U.S. In an April 2018 press release, the Department of Justice said it would be implementing then-Attorney General Jeff Sessions’ “zero tolerance” policy at the border, citing a “203 percent increase in illegal border crossings from March 2017 to March 2018.” 

The separations rendered migrant children who arrived at the border with their parents “unaccompanied.” There were also at least 60 instances of immigration officers separating families who crossed the border at ports of entry and thus could not be prosecuted for illegal entry. These children were first kept in Customs and Border Protection custody before being transferred to shelters under the purview of the Office of Refugee Resettlement, an agency within the Department of Health and Human Services. The children’s parents were kept in ICE detention centers for single adults. One of the administration’s unofficial rationales for the policy was its desire to circumvent the Flores settlement agreement, a consent decree that lays out guidelines for the treatment of migrant children in federal immigration custody. Flores prevents the government from indefinitely detaining migrant children, including those who arrive in the U.S. with their parents.

The Trump administration largely denied that it had a policy of separating families at the border until June 2018, when Trump signed an executive order ending the policy he and his cabinet members claimed didn’t exist. That month, a federal judge ordered the administration to start reuniting separated families. By that point, immigration officers had separated more than 5,400 children from their families. Some of those children were reunited with their parents that summer or in the months afterwards; there were several reports of babies and toddlers not recognizing their parents after having been separated from them for months. But given the year-long timeline of the family separation policy, many parents were deported without their children, who remained in ORR shelters (or, in some cases, were released to other relatives living in the U.S.)

Reuniting families was—and still is—a difficult process. For one, immigration officials didn’t keep sufficient records of the parents and children they were separating. As we’ve written before, it may sound ridiculous to criticize that particular aspect of an entirely abhorrent policy, but in practice, the lack of paperwork made it almost impossible to figure out which parents corresponded to which children, or even which children in its custody had been separated in the first place. The Trump administration repeatedly claimed it had a central database tracking parents and children, but no such database existed. As of last month, the steering committee tasked with locating parents has been unable to track down the parents of 506 children who were separated, down from 666 in November. Per CNN, ACLU attorneys have been able to locate extended family members of 168 of the 628 children whose parents had not been found as of last December. 

Tracking down missing parents and reuniting separated families is one thing; allowing for the potential readmission of families who were deported after being separated is another issue entirely. As we explained above, people who are deported are barred from re-entering the U.S. for at least five years. The question isn’t whether the Biden administration is committed to reuniting families separated under Trump, but where and how those reunifications will take place.

What’s next?

There are a few different potential solutions here, though none are particularly legally straightforward. A quirk of immigration law is that, while the president can essentially supersede the entire rest of the Immigration and Nationality Act to bar the entry of noncitizens to the country, he can’t do the same to admit people. It’s a system designed to make exclusion much, much more straightforward than admission. The president can’t, for example, just issue an executive order that would grant all parents of class members automatic status.

There are other ways of achieving this. At the direction of the president, DHS could, for example, designate some process to presumptively grant waivers of inadmissibility and parole to deported deported parents, which would permit them to simultaneously be admissible to the U.S. and have the ability to enter the country almost immediately. It could also theoretically decide that all of the removal orders issued to separated parents are legally deficient and have the immigration courts—which are in an executive branch agency under the Justice Department—rescind them and reopen their immigration cases, which would eliminate the basis for inadmissibility in the first place. This is presuming that they had never attempted to enter the country illegally again after their deportation, which could preclude them from applying for any status again.

Still, all this would accomplish is giving them another shot at a long-odds asylum, withholding of removal, or Convention Against Torture win. If they lost their new cases they would be deported again, potentially triggering yet another separation for these families. This is an outcome that everyone, including the administration, will probably seek to avoid. Biden might seek to institute some kind of deferred action program, where enforcement action would not be taken against returning parents, but they would also not receive permanent status. Unfortunately, that might have to come in the form of legislation.

On that front, Democrats now control both houses of Congress, and are relatively well-positioned to push through a measure that could accomplish this. Biden’s comprehensive immigration bill is already facing relatively steep odds, but a targeted measure on separated parents would be hard to argue against. Even if Senate Democrats don’t get rid of the filibuster, the family separation policy was so deeply unpopular and the number of potential beneficiaries is so small that Republicans might let it through, even if just to claim that they’re not categorically opposed to humanitarian immigration and then torpedo the broader legislation.

Under the Radar

Refugees approved for resettlement taken off flights to U.S.

More than 260 refugees have had their flights to the U.S. postponed or canceled, CNN reports. In February, Biden issued an executive order aiming to raise the refugee admissions cap and putting forth new practices for the refugee resettlement process. That order did not raise the admissions ceiling for this fiscal year, which President Donald Trump set at 15,000, the lowest figure in U.S. history. Despite numerous reports that Biden was planning on issuing a subsequent executive order raising the cap, he has yet to do so, leaving refugees who were approved for resettlement but not yet allowed into the U.S. in limbo.

In one case, a Congolese family who has been staying in Uganda had their flight to the U.S. canceled, according to the CNN report. Just 11,800 refugees have been admitted into the U.S. since October 2020, according to a report obtained by CNN. The report says that the pandemic has slowed the resettlement process, but the Trump administration’s evisceration of the refugee admissions program was also a factor. Every year, as the refugee admissions cap was set lower and lower, resettlement agencies shuttered offices across the country and reduced operations.

Biden administration continues expelling migrants to Haiti despite knowing they face danger there

The Department of Homeland Security is knowingly expelling Haitian migrants to their home country despite knowing they “may face harm” there, according to government documents obtained by BuzzFeed News. The Biden administration has rolled back several of Trump’s immigration policies, but one it has kept firmly in place is the Centers for Disease Control and Prevention order effectively shutting down the border to asylum seekers. (For a more in-depth look at the CDC order, we encourage you to read this edition of the newsletter from November 2020.) 

Although Biden attempted to issue a moratorium on deportations, expulsions have continued. Deportations and expulsions are legally different, even though the outcome is effectively the same. Deportations typically result from proceedings in immigration court. Expulsions, however, are immediate; there is no hearing, and therefore no due process. According to BuzzFeed News’s report, more than 900 Haitian migrants were expelled to Haiti in the first few weeks of February under the CDC order despite DHS acknowledging that “Haitians removed to Haiti may face harm upon return” to the country due to “crime, civil unrest, kidnapping, and COVID-19.”