Two weeks after being separated from her 10-year-old son, a young Honduran mother, sick with worry about her child’s well-being, bombed a critical interview to pursue her claim to asylum in the United States.
Months later, the Trump administration has agreed to give her—and hundreds like her—another chance to validate their asylum claims, potentially rectifying one grave harm perpetrated on migrant asylum seekers by President Donald Trump’s now-defunct “zero-tolerance” policy, which took children from their parents at the U.S.-Mexico border in part to discourage illegal immigration.
Under an agreement negotiated by the Department of Justice in the hopes of settling three separate lawsuits filed over its family-separation policy, migrant parents who failed their “credible fear” interviews—initial proceedings conducted by phone to determine whether an asylum applicant could plausibly make their case in a full asylum hearing—would have a second chance to make their case.
“This agreement would give many families a second chance at seeking asylum and leaves open the possibility for some deported parents to return to the United States,” Lee Gelernt, the deputy director of the ACLU’s Immigrants’ Rights Project, said in a statement. “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.”
The agreement, which is pending approval by a federal judge, is aimed at resolving three separate lawsuits: Dora v. Sessions, which claims that plaintiffs who had been separated from their children were too traumatized to capably participate in credible fear interviews; Ms. L v. ICE, filed in response to the family separation policy, which the complaint called a violation of the Constitution’s due process clause; and M.M.M. v. Sessions, filed on behalf of children who were separated from their parents during the policy’s enactment.
“The parents in these lawsuits all came to the United States fleeing unspeakable violence and seeking shelter for themselves and their children,” said Sirine Shebaya, senior staff attorney for Muslim Advocates, one of the groups that filed Dora v. Sessions. “The government forcibly separated them from their children, causing them severe psychological trauma and denying them a meaningful opportunity to make their case for asylum.”
If approved, the agreement would give “due consideration… to the psychological state of the parent at the time” for those who failed their credible fear interview. If a parent’s credible fear determination remains negative, U.S. Citizenship and Immigration Services has agreed to screen the child individually, as well as not to deport the parent while their child’s case is being adjudicated.
Crucially, parents will be allowed to participate in that proceeding, as not all children are fully aware of the reasons why they may not safely be able to return to their country of birth, a potential huge relief for asylum seekers whose claims were derailed by the trauma of losing their children.
“This is great,” immigration lawyer Kate Chaltain told The Daily Beast. “It’s what we have been asking for since I first became involved... in mid-July.”
Chaltain’s client, Elvia*, is one of those people who may now have a second opportunity to claim asylum. After she fled Honduras following months of rape and torture at the hands of a hitman who threatened to murder her family, Elvia and her son arrived at the U.S.-Mexico border seeking asylum. The pair were separated almost immediately, and Elvia, desperate to be reunited with her son and encouraged by an interpreter to gloss over the details, rushed through the interview. Elvia, like hundreds of other parents in the same situation, failed the interview—and may have doomed herself to deportation.
“She had been told by multiple people in her facility that the sooner you get the interview over, the sooner you get to see your child,” Chaltain said of the case. “It’s what any parent would be focused on.”
If the judge signs off on the agreement, Chaltain said, Elvia will be entitled to a review of her prior credible fear interview. In addition, evidence relating to her mental state during the first interview will be taken into consideration in the event there are any inconsistencies or changes to her testimony.
"What I am not clear on is whether or not this settlement affects in any way the new credible fear standards issued by Asylum HQ that have proven to be so damaging,” Chaltain said, noting new policies which instruct asylum officers to “generally” deny claims pertaining to domestic violence and gang reprisals. “The settlement makes reference to the statutes that must be followed with regard to the credible fear interviews, but I don’t know practically speaking what this means regarding those guidelines.”
The Department of Justice did not return a request for comment.
*Elvia is a pseudonym to protect her identity.