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Four separated families reuniting this week, but many questions remain—05-06-21
Immigration news, in context
This is the seventy-eighth 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 analyze the future of and legal complexities surrounding the family reunification effort under the Biden administration.
In Under the Radar, we look at the recent raising of the refugee admissions cap—and whether it’ll actually change much
In Next Destination, we discuss the news that the Biden administration wants Mexico to do more to keep Central American families from reaching the U.S.
The Big Picture
The news: The Biden administration announced that four families separated under the 2018 zero tolerance policy and its 2017 pilot program were slated to be reunified in the United States this week. (It’s not clear if all of them have been yet, with officials withholding some details for privacy reasons.) Advocates celebrated the announcement but decried the pace of movement on the issue, and questions remain about the permanence of parents’ status.
Homeland Security Secretary Ali Mayorkas has said that this small group is only the first of many of the roughly 1,000 families estimated to remain separated to be reunited in the U.S., and told NBC News that the government was open to the possibility of having not just parents but entire families arrive in the country. The move was broadly heralded, but many people overlooked a major catch: the mechanism for the parents to enter the country is humanitarian parole, a temporary, discretionary designation that has no lead-in to permanent status (in fact, separately, the Biden administration is in federal court arguing that parole doesn’t even constitute an “admission” for legal purposes, and people who entered the country with it cannot adjust their status to resident even if they otherwise qualify). Michelle Brané, formerly of the Women’s Refugee Commission—one of the organizations involved in the reunification effort—and now head of the Biden reunification task force, said the government was exploring “longer-term status,” but the legal path to that remains very hazy.
It’s probably fair to say that family separation was far and away the best known and most controversial of Trump’s immigration policies, and one of his most infamous policies, period. We’ll get into more detail below, but the broad strokes are that the administration began using the option of criminal prosecution for all adults caught crossing the border (and in some cases, even those who presented legally at a port of entry). As a consequence, migrant parents were taken into criminal custody and away from their children. The government did very little to track the separations or keep the families linked, leading to hundreds of parents being deported without their children. Even those who remained in the U.S. had no clear-cut path to reunification at that time.
The effort to connect the cases of and locate separated children’s parents has been ongoing since mid-2018, when a federal judge ordered the Department of Homeland Security both stop separations (which had at that point already been suspended by the Trump administration under extreme public pressure) and assist a group of nonprofit and legal providers in steps to reunite these families, which now formed part of a legal class (subsequently expanded to include the families separated under the earlier pilot). The majority of parents in the original class were still in the United States, partly given that the judge had stopped removals of class members, and about 2,300 children in the original class were reunited with their parents in the U.S. by late 2019. However, the big question here has always been what would happen to the parents who were deported. That number includes about 500 from the original class and the majority of the parents of the over 1,100 children in the expanded class (the confirmed number from an initial estimate of over 1,500, some of which the government has contested). The government is continuing efforts to identify additional separations and add the families to the class; the ACLU believes that a total of 5,500 such separations took place between 2017 and 2018.
The original settlement agreement between the government and the plaintiffs is pretty narrow on the question of returns to the United States. It states that the “government does not intend to, nor does it agree to, return any removed parent to the United States or to facilitate any return of such removed parents.” Exceptions can only be made in “rare and unusual” situations in which “plaintiffs’ counsel believes the return of a particular removed Ms. L class member may be warranted.” The ACLU and the other plaintiffs’ attorneys have cited cases in which federal judges have been able to undo unlawful removals, such as when someone is deported in contravention of a stay or have had their due process rights violated. This has worked to bring back a handful of parents, but the trouble is that the argument of a procedural or legal issue with the deportations isn’t clear-cut.
Separations aside, most of these parents in the expanded class did go through an asylum process, stunted as it was by massive Trump-era restrictions, and were rejected and issued technically lawful removal orders. The lawyers have been able to argue that in certain cases parents were lied to or unable to give accurate statements due to their emotional state after a separation, but this is by no means an argument that the court has universally accepted for the totality of the class. For the hundreds of deported parents whose removal has not and probably will not be declared procedurally unsound and unlawful, there isn’t a great menu of options. For now, when found (and the latest status report states that there are believed to be 302 deported parents who have yet to be located and contacted), they are given the option of reuniting with their children in their countries of origin, or forfeiting the right to be reunified. Many have chosen the latter instead of risking a return of their kids to the dangerous situation they had hoped to flee in the first place.
How we got here
The Trump administration had a clear plan for separating migrant families at the border. Under the so-called “zero tolerance” policy, any adult caught crossing the border without authorization would be prosecuted for illegal entry or re-entry. Since children can’t be held in criminal custody just because their parents are incarcerated, these prosecutions would trigger separations. (The government can legally detain kids—with some caveats, which it rarely if ever adheres to—in immigration facilities, since immigration detention is considered “civil.” Minors can’t be held in prisons, jails, or other forms of criminal detention just because their parents are.) As we noted above, however, several parents also had their children taken from them after asking for asylum at ports of entry.
Family separation had two goals: the first was to circumvent the Flores settlement agreement, a consent decree that prevents the government from indefinitely detaining migrant children. The administration wanted to detain migrant families for the entirety of their cases, but Flores didn’t allow them to do so. By separating parents from their children, the administration could ensure that parents were indefinitely detained in ICE facilities; their children, meanwhile, would be taken to nonprofit shelters and released to sponsors in the U.S., such as other relatives, assuming they had them. The second goal was to send a message to prospective migrants: if you come here, we’ll take your children away from you. That was as far as the plan went; there were no protocols in place for reuniting families after they had been separated, and the administration only began attempting to track down separated parents after a federal judge ordered it to do so.
Zero tolerance started as a pilot program in late 2017, but the administration didn’t announce the policy until April 2018. Even after then-Attorney General Jeff Sessions said at a press conference that “illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice,” the Trump administration denied that it had “a policy of separating families at the border.”
Trump eventually stopped the policy—which his administration claimed never existed—with an executive order on June 20, 2018. A week later, the ACLU sued the government on behalf of a Congolese asylum seeker known as Ms. L. The Ms. L lawsuit confirmed that the Trump administration hadn’t just been separating families who crossed the border illegally; Ms. L and her -year-old daughter asked for asylum at a port of entry near San Diego in November 2017, but were separated anyway. Ms. L was taken to a detention center in San Diego, and her daughter was sent to a shelter for unaccompanied migrant children operated by the Office of Refugee Resettlement.
The Ms. L. Lawsuit was expanded into a class-action, and for the next year, the class of plaintiffs kept expanding. By March 2019, the class included families who had been separated as far back as July 2017, and children who were no longer in the custody of the federal government. The federal judge presiding over the case had issued an injunction against separations back in 2018 and had ordered the government to begin the process of reuniting separated families—a difficult process made all the more complicated by the lack of records the Trump administration kept. By the time Biden took office, most families had been reunited, but those who hadn’t seemed to pose particularly complicated cases.
Reuniting the families separated under Trump’s zero-tolerance policy was one of Biden’s campaign promises, and the Biden administration said doing so would be a day-one priority. Actually reuniting those families has proven to be extremely difficult. Some parents were deported without their children and still haven’t been tracked down, and in general, the Trump administration didn’t keep sufficient records of which parents corresponded to which children. In 2018, the New York Times reported that Customs and Border Protection agents initially deleted hundreds of records containing families’ “identification numbers.” Last year, BuzzFeed News obtained an unpublished report from the Government Accountability Office which revealed that Border Patrol officers failed to keep track of separations.
Most of the families separated under the formal 2018 policy have already been reunited, but more than 1,000 families, mostly from the pilot program are still awaiting reunification. Of those 1,000, many of the parents were deported to their countries of origin, making reunifications more difficult.
There’s also the possibility that more separations happened than those we know of. According to the ACLU, 5,500 children were separated from their families under Trump. In April, DHS officials told reporters they were working “as quickly as we can” to reunite families separated under Trump, but that the process was difficult because they were dealing with “incomplete” data collected by the Trump administration. Per Axios, officials said they were reviewing around 5,600 cases of unaccompanied migrant children from 2017, and that those cases had not yet been reviewed for evidence of family separation. In those cases, it is unclear whether children were separated from their parents, separated from non-parent relatives (which happened before and after zero tolerance), or whether they arrived at the border unaccompanied. It’s unclear how much overlap, if any, the cases currently under review have with those we already know of.
U.S. law provides limited paths for a return. It’s theoretically possible for separated parents to file another asylum application, though would almost certainly fail if a reinstated removal order didn’t stop it from even going forward. Other than that, parole is the obvious option, but again, doesn’t provide for a permanent stay. Even if the children win their own asylum cases, they couldn’t sponsor their parents until they became permanent residents and turned 21, and even so the parents would have to get an inadmissibility waiver to overcome their deportation.
Some advocates and attorneys are pushing for the administration to take the position that none of these deportations were procedurally appropriate given the circumstances, which could pave the way for the judge to rule that all class members’ removal orders were essentially void and order their return to the U.S. for new asylum processes. Still, asylum applications don’t have a great success rate, and there would be an enormous risk that many parents would be denied again, and be subject to deportation again. Contrary to what a lot of confused observers seem to believe, the administration absolutely cannot simply hand permanent residency to these individuals.
A novel approach that some have suggested is the use of certain visas for crime victims and witnesses who collaborate in investigations. U visas, for example, are available to people victims of criminal conduct taking place in the United States, provided they cooperate with law enforcement, and can be applied for from abroad. This is extremely complicated and unlikely to work for a number of reasons, among the biggest of which is that it would require an acknowledgement from the current administration that the prior administration engaged in criminal—not unbecoming, immoral, or unfortunate, but criminal—conduct, and that it was investigating such conduct. The odds of this are pretty slim, not only because it would be extraordinarily politically contentious for an administration that has been characterized by immigration caution, but would set the precedent that administrative policies like zero tolerance are subject to criminal investigation, which is a door that the Biden team is very much not going to want to open. There’s also the little detail that such visas are capped at 10,000 per year, and there is already an enormous backlog that’s leading to years-long waits.
There is still one entity that can cut through all this and provide direct relief. Unfortunately, that entity is Congress, which puts the odds of a solution at—to put it diplomatically—a low level. A vehicle already exists in the form of the Families Belong Together Act, introduced by Rep. Joaquín Castro in the House and Sen. Richard Blumenthal in the Senate. Among other things, the legislation would grant all deported children and parents separated without cause the ability to return to the U.S. and apply for permanent residence. Notably, it wouldn’t only apply to Ms. L class members, but any family for whom Homeland Security “failed to demonstrate in a hearing that the parent or legal guardian was unfit or presented a danger to the child.” This still puts a lot of faith in DHS’ notoriously flawed determinations of unfitness, and would retain standard grounds of inadmissibility (such as prior criminal conduct), but would nonetheless provide a path for the vast majority of separated families to reunify permanently in the country. It’s not clear that the bill is going to make any headway, though.
Under the Radar
Biden raises refugee cap, but it’s too little too late
After weeks of claiming raising the annual refugee resettlement ceiling was too logistically complicated given the situation at the border, the Biden administration has decided to allow up to 62,500 refugees to resettle in the U.S. during the 2021 fiscal year. The new ceiling—which Biden initially said he supported, then claimed was impossible to achieve—is a substantial increase from the historically low 15,000 limit set by President Trump. But it also comes far too late.
The 15,000 limit, Biden said in a statement released by the White House, “did not reflect America’s values as a nation that welcomes and supports refugees.” But Biden could have raised the ceiling on day one of his presidency. Instead, he issued an executive order saying he supported raising the refugee admissions cap and that his administration would work to reevaluate and strengthen the resettlement process. Then he did nothing, even as reports emerged of hundreds of refugees being pulled off resettlement flights.
In April, CNN reported that Biden was hesitant to raise the refugee ceiling because of optics. Sources told CNN that Biden was waiting to make the decision he thought suited him best politically. It’s likely that Biden worried that raising the admissions cap amid the so-called “border crisis” would give Republican lawmakers an opportunity to call him an open borders president—and in fact, Biden previously said that the U.S. shouldn’t admit more refugees this year because of the situation at the border. But that statement was met with backlash from Congressional Democrats, resettlement agencies, and immigrants’ rights groups, and it’s possible that Biden raised the ceiling due to political pressure.
Increasing the admissions cap this late in the game will help some refugees who have been waiting to be resettled for months or years, but it’ll be all but impossible to reach 62,500 admissions during this fiscal year—something the Biden administration has admitted. “The sad truth is that we will not achieve 62,500 admissions this year,” Biden’s statement said.
U.S. wants Mexico to do more to prevent Central American migration
The U.S. is considering asking the Mexican government to take additional measures to prevent Central American migrants from reaching the countries’ shared border, BuzzFeed News’s Hamed Aleaziz reports. U.S. officials have discussed several proposals, including having Mexico apprehend more than 1,000 migrants each day and having the Mexican government deport migrants turned back under Title 42 back to their home countries. Although Vice President Kamala Harris and Mexican President Andrés Manuel López Obrador are scheduled to meet this week, a National Security Council spokesperson told BuzzFeed News that these proposals won’t be discussed during that meeting.
It’s clear that the Biden administration is attempting to push the border south, as administrations before it have. Under Trump, the Mexican government deployed security forces to its southern border with Guatemala to keep migrants from passing through. The difference is how the Biden administration is trying to work with Mexico: Trump threatened to impose tariffs on Mexico if the country didn’t do more to limit Central American migration. Meanwhile, the Biden administration is taking more of a carrot than a stick approach. Biden has offered to give the Mexican government vaccines, though the administration denies this would be done in exchange for additional border enforcement. The administration has also discussed a militarized enforcement strategy with Guatemala, El Salvador, and Honduras, which we explored in depth in a previous edition. Ultimately, despite the difference in tone, the goal is the same as Trump’s: stopping migration at the source, even if and when migrants are fleeing dangerous situations in their home countries and would likely qualify for asylum in the U.S.