Deal Could Allow Separated Families to Revive Asylum Claims

Tears run down the face of Naomi Liem, 10, of Franklin Park, N.J., on Capitol Hill in Washington, Tuesday, June 26, 2018, during a protest against immigrant families being split up. Liem’s father, Guanuawan Liem, is currently being detained by ICE. (AP Photo/Carolyn Kaster)

SAN DIEGO (CN) – A deal between the Justice Department and families separated under President Donald Trump’s now-abandoned “zero tolerance” immigration policy gives families the chance to again pursue asylum in the United States.

In a settlement reached late Wednesday, class members from two class actions being litigated in the Southern District of California and plaintiffs in a third case brought last month in the District of Columbia will be given the chance to revive claims for asylum.

The settlement still needs final approval from U.S. District Judge Dana Sabraw in San Diego.

Under the agreement, federal authorities will conduct a “good faith” review of credible-fear interviews where parents failed to establish claims for asylum based on fears of persecution or torture in their home countries. If reconsideration of the parent’s asylum case is warranted, they will be able to provide new or additional information for consideration by the government.

Muslim Advocates, one of the civil rights groups suing the government on behalf of the separated parents, says the settlement may give over 1,000 parents another chance at pursuing asylum.

Parents claim they failed their credible-fear interviews at a high rate due to being distraught over being separated from their children at the U.S.-Mexico border.

The settlement recognizes the parents’ state of mind after being separated from their kids could have negatively impacted their asylum cases.

“In determining whether any factual inconsistencies between the original interview and the subsequent fact-gathering impact the credibility of the parent, due consideration will be given to the psychological state of the parent at the time of the initial interview,” according to the settlement.

For parents who pass a second credible-fear interview, their children will be “treated as dependents” and the family will be allowed to stay together during the asylum process.

If a parent fails their second interview, their child will be screened independently for asylum claims. Parents will be allowed to participate in their child’s interview and provide additional testimony on their behalf.

As for parents who were deported without their children, their attorneys may raise “individual cases” with the government where they think their return to the U.S. is warranted for the purposes of pursuing asylum. Plaintiffs’ counsel indicated such cases are believed to be “rare and unusual.”

In a statement, American Civil Liberties Union Immigrants’ Rights Project attorney Lee Gelernt said the agreement “leaves open the possibility for some deported parents to return” to the United States.

“The Trump administration will never be able to erase the full damage of its family separation policy, but this agreement is an important step toward restoring and protecting the asylum rights of impacted children and parents going forward,” Gelernt said.

For children seeking asylum whose parents were deported, parents will be allowed to provide testimony on their child’s behalf telephonically or in writing.

If approved, the settlement lifts the temporary restraining order by Judge Sabraw, who ordered the reunification of families earlier this summer. The judge stayed deportations of reunited families over concerns they were not able to legally pursue asylum claims.

The parties asked Sabraw to add the agreement to the next status conference in the family separation litigation, scheduled for Friday afternoon.

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