Treating separated kids like unaccompanied minors could backfire on the Trump administration

More than three weeks past the deadline established by a federal court, the Trump administration has reunited more than 1,600 children separated at the border with their parents. But even though the families are back together, the kids may not be getting their fair shot at asylum.

Now, a federal judge will have a chance to extend the protections granted to them.

In a ruling on Thursday, Judge Dana Sabraw temporarily stopped the administration from deporting reunified families until it’s determined what rights to asylum the children have. The judge is now considering whether parents waived their children’s right to asylum when they agreed to reunification — and if the kids still have a right to the more extensive asylum protections they temporarily had while classified as unaccompanied.

While Thursday’s victory in court means another chance at asylum for hundreds of reunified children, the government is granting asylum to fewer and fewer undocumented immigrants.

The ruling came in a case filed on behalf of the separated children alongside the ongoing ACLU class action suit representing separated parents. Lawyers in the existing ACLU case are also asking the judge to compel the government to bring any deported parents back to the U.S., on the grounds that they were denied fair asylum hearings, or to accompany their children still in the U.S. through their own asylum proceedings.

The ACLU alleged in court filings Thursday that 73 parents were deported without their children in the days after the judge issued an initial ruling in June that required reunification, which meant that parents could not be deported without their kids. Another 20 parents were also deported during this time, the ACLU told VICE News; their children have been released to sponsors.

“The option to select and place their children with sponsors was given to these individuals prior to their removal,” a Department of Homeland Security spokesperson told VICE News, regarding the 93 deported parents. But the spokesperson wouldn’t comment on whether the parents fully understood their rights to reunify with their child in the U.S.

Parents in detention were given forms to sign that asked them to choose if they wanted to be deported with their child — or without. The forms were meant for only parents with final orders of removal, but attorneys said that parents who had valid asylum claims also signed the forms.

“Many of the parents were told that signing a document relinquishing their rights or their request for asylum was the only or the fastest way to be reunified with their children,” said Michelle Brané, director of the Migrant Rights and Justice Program at the Women’s Refugee Commission, and a member of the steering committee set up by the ACLU to track down deported parents.

Many parents also spoke only indigenous languages and may not have understood the forms given to them in Spanish or English, according to affidavits filed in the case.

“The fundamental question is: Was their removal unlawful because they were misled or coerced or didn't have fair asylum hearings, “ Lee Gelernt, the ACLU attorney arguing the case, told VICE News. “So we believe the Court should allow these parents to come back into the United States by whatever technical means the government wants to do it.”

But the push for increased asylum protections for reunified families is a long shot, especially after a wider crackdown on asylum procedures. In July, asylum officers stopped considering gang or domestic violence as a basis for credible fear after after a June decision from Attorney General Jeff Sessions.

As a result, the rates of successful credible fear interviews, which are the first step toward being granted asylum, hit a low in June. From May to June, the rate of denial jumped from a little over 8 percent to 13 percent, after hovering between 7 and 9 percent since October 2017. That’s nearly 500 more denials from one month to the next, with the total number of decisions remaining about the same.

If an asylum seeker fails a credible fear interview with an asylum officer, he or she can still appeal to an immigration judge. But success rates in immigration court have also dropped in recent months: Only 14.7 percent of applicants were granted credible fear in June, compared to more than double that six months previously, according to recent data.

Cover image: Evelyn Zepeda cares for a 4-year-old boy at her home in Austin, Texas. The boy's adoptive mother and Zepeda's biological mother, Josefina Ortiz Corrales, remains in an immigration detention center in south Texas while Zepeda cares for her adopted son. (AP Photo/Stephen Spillman)