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Recognizing that the separation of migrant families along the southwestern border may have compromised their right to seek asylum, the federal government agreed to give a second chance to a thousand migrants facing at the expulsion.
In a settlement announced on Thursday, government lawyers said that parents whose children had been abducted as part of the border authority's "zero tolerance" policy will be able to apply for asylum again. They can also stay in the United States while their children pursue their own asylum applications.
Immigrant lawyers challenging thousands of family separations along the border last spring argued that the loss of their children has left parents too distraught to assert their right to asylum. The asylum procedure can be grueling, often requiring lengthy interviews and documentary evidence. As a result, the lawyers said that many of the parents' complaints were quickly dismissed.
"It is an implicit recognition that they have harmed these families by denying them meaningful access to the asylum system, and this wrong will now be corrected," said Simon Y. Sandoval-Moshenberg, legal director of the asylum system. Immigrant Advocate Program at the Center of Justice, which represented the complainants.
The Trump administration stopped separating families along the border in June, but thousands of children were removed from their parents as part of the "zero tolerance" policy, with the government seeking to criminally prosecute all migrants entering the United States without authorization.
Since then, separated families under the policy have launched a series of court challenges over how this affects their legal rights and emotional well-being. The latter settlement, filed late Wednesday, applies to three of the ongoing cases brought together under Judge Dana M. Sabraw in San Diego.
Judge Sabraw still has to approve the agreement.
Parents in the center of the institution lost their asylum eligibility in the first stage of the process, following border interviews in which a migrant must prove a "credible fear" of returning to his home. native country. the likelihood that they will be persecuted there.
Most asylum seekers pass their interviews for "credible fear" but are subsequently denied asylum later in the process, when the burden of proof becomes more important and more specific. To obtain asylum, a migrant must prove that he will be persecuted because of his vulnerability, such as race, religion or sexual orientation.
Mr. Sandoval-Moshenberg, who represented the complainants, said that many parents had been assessed for "credible fear" after the removal of their children, but before being warned of the place of the children. He said his team had provided evidence that during the interviews, the parents were "discouraged by the trauma, focusing only on the well-being and fate of their children".
In one piece of evidence included in the case, a record of an immigration judge interviewing a mother about her asylum claim, the mother may be heard crying too loudly to answer the judge's questions and say that she feels sick, said Sandoval-Moshenberg. . After a few minutes, he said, the judge says that the asylum officer believes that the woman's fear of returning to her country of origin is not credible and asks to be brought see a doctor.
As part of the settlement, families will be allowed to file new evidence to support their claims and bring lawyers with them when logistically possible. Sandoval-Moshenberg said that asylum seekers usually undergo at least the first stages of the process alone or with lawyers available only over the phone.
In assessing the discrepancies between the new evidence presented and the initial asylum interviews, the government stated in the regulation that "the psychological state of the parent at the time of the initial interview will be duly taken into account".
The regulation applies only to parents who are separated from their children but still in the United States.
In concluding this agreement, the plaintiffs' lawyers gave up the idea of bringing a class action on behalf of the hundreds of separated parents who have already been deported, some without their children. These parents could theoretically still file individual legal remedies.
The bar for asylum applications has increased under the current administration, which has heightened the burden of proof in interviews of "credible fear" and eliminated certain categories of vulnerability, such as those relating to victims of domestic and family violence, eligibility.
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