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U.S. Gives Legal Status to Families Separated Under Trump

By T. Evan Eosten Fisher, Esq. | Last updated on

In a recently announced settlement, the U.S. will grant legal status to children from migrant families who were separated at the border by immigration authorities under the Trump and Biden administrations.

The settlement results from a 2018 lawsuit filed by advocacy groups, including the ACLU, and it will apply to nearly 4,000 children separated from their families as part of a zero-tolerance policy toward unauthorized border crossings between 2017 and 2022. The agreed settlement is backed by the Department of Homeland Security, but it still awaits final approval from the judge presiding over the suit.

The status offered by the settlement is only a temporary legal status, which is not the equivalent of a “green card" or permanent legal residency and does not, on its own, provide any path to U.S. citizenship. The affected migrants will be able to apply for work permits and up to three years of legal residency in the U.S.

During those three years, the migrants will also have to ability to pursue asylum claims, and, if successful, those claims could lead to permanent legal residency in the U.S. The United States is obligated by treaty to provide asylum to any migrant who can prove they possess a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Additionally, the settlement agreement requires U.S. officials to continue working to reunite families separated under the zero-tolerance policy and purports to temporarily bar the new implementation of any policy that leads to widespread separations.

The settlement also accounts for some of the basic needs of the affected migrants, by including housing support for up to one year and some basic health care, but the U.S. stopped short of providing any direct financial compensation to the affected families.

A Victory for Immigration Rights?

On its face, this settlement might appear to be a step forward for the cause of those who champion immigration rights, and indeed, the ACLU is claiming the settlement as a victory. After all, the Trump-era policy of family separation (which was continued after Trump left office) appears to have been repudiated. The current administration, for the time being, has conceded the position that widespread separation of families without individualized determinations of merit is improper. The affected migrants can at least breathe more easily knowing that their removal from the country no longer looms imminent.

On the other hand, the actual relief is somewhat scant, and the non-monetary assistance offered to these families could seem meager when compared to the lasting trauma of separating children from their parents for several years.

For example, a migrant family detained and separated in 2017 could have been forced to endure up to six years apart — only to be compensated by one year of housing assistance and three years of legal residency and possible work authorization.

Even worse, a family that arrived in 2017 with a colorable claim for asylum should have, according to the law, had up to one year from their entry into the U.S. to present that claim. Successful asylees are allowed to apply for lawful permanent residency (a “green card") after one year, so some of the families who benefit from the settlement will still find themselves delayed in their process to obtain permanent residency by several years.

An Uncertain Future for Migrants at the U.S. Border

In light of the 2024 presidential campaign season, the settlement is a shaky advance at best. Candidates are boasting of plans that call for tougher restrictions on border crossings and hardline immigration policies. Any new plan that causes widespread family separations could be pushed through under a carve-out for national security concerns.

The political reality of border policy is that it remains highly dependent on the current presidential administration, as no meaningful congressional action to change immigration law has occurred in the last twenty years. The biggest changes for immigrants and immigration lawyers in recent years have resulted from non-legislative policies like Obama's DACA program and Trump's Remain in Mexico policy.

As a result, immigrants and those who care passionately about immigration policy (regardless of their political stripes) will be watching closely to see who claims the White House in 2024.

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