Judge Approves Settlement for Separated Families to Seek Asylum

SAN DIEGO (CN) – Calling it “a remarkable piece of work,” a federal judge Thursday formally approved a settlement by the government and attorneys for families separated at the U.S.-Mexico border to redo their asylum interviews.

“The settlement agreement is a remarkable piece of work. It’s not perfect, but we are dealing with a situation that is far from perfect,” U.S. District Judge Dana Sabraw said at a hearing Thursday.

The settlement allows separated families to revive their asylum claims by taking a second stab at the credible-fear interview immigrants needed to establish fear of persecution or torture in their home countries.

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

The approval comes after a dispute between the government and attorneys representing the families over the government dragging its feet in conducting credible-fear interviews after Sabraw granted preliminary approval to the settlement. At least 40 families opted for deportation “because they simply could not wait in detention for any longer,” according to their attorneys.

The judge ultimately ordered the government to start the asylum interview process for families before Thursday’s final approval hearing. As of the latest status update filed Nov. 8, 62 parents had received  interviews.

At Thursday’s hearing, Sabraw overruled a handful of objections to the settlement, noting they were not about the fairness of the agreement but were filed by individuals who wanted to be included in the settlement because it “is one that is so good,” according to the judge.

Sabraw found the parties should meet and confer on various objections filed including whether people seeking to be included in the settlement could instead get some kind of relief under the original case filed on behalf of parents separated from their children, Ms. L v. U.S. Immigration and Customs Enforcement.

Attorney Martin McNerney, representing two legal guardians who filed objections and wanted to be included in the agreement, said the settlement failed to define “parent” and that legal guardians such as his clients – a grandmother and older sister – should also be afforded another opportunity to pass their credible-fear interviews.

“This is collectively referred to as the family separation litigation and my clients’ families were separated. The trauma on these families is exactly the same,” McNerney said.

McNerney noted his clients received the same documents Immigration and Customs Enforcement gave to parents while they were in detention. He added that none of the rules barring family reunification – such as the parent having a contagious disease or criminal record or being deemed unfit or a danger – applied to his clients.

But Justice Department attorney Sarah Fabian noted “different countries have different rules about what may constitute a legal guardian.”

Fabian said the number of legal guardians seeking to be included in the settlement could “potentially be a much broader issue and may involve a number of individuals.”

Attorney Catherine Weiss, representing legal service providers working on behalf of more than 170 separated children, raised concerns over ambiguities in the settlement agreement she said left unclear what asylum procedures would apply for families that re-separated if children wanted to pursue their own immigration claims.

Weiss also criticized the settlement for not considering the children who had accepted voluntary removal orders only to be reunited with their parents in the U.S. Those children face stiff penalties for remaining in the U.S., including reentry bars and possibly thousands of dollars in fines, “all because of nothing they are responsible for in any way,” Weiss said.

In reference to the departure forms the government said were voluntarily signed but may have been compelled, Sabraw acknowledged the litigation has a “long history with those issues.” But he found the attorneys should ultimately address them on a meet-and-confer basis.

He asked for the parties to include the issues raised by the settlement objectors to be addressed in a status update conference scheduled for Nov. 30.

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