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Opinion On separated children, Biden has a long way to go to restore justice

Department of Homeland Security Secretary Alejandro Mayorkas. (Kevin Lamarque/Reuters)
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On Monday morning, Homeland Security Secretary Alejandro Mayorkas announced that a handful of migrant children victimized by Donald Trump’s policies will be reunited with their moms. Mayorkas said he’s “pleased” that “these four mothers will be hugging their children after so many years,” and vowed to “continue to work tirelessly to give families the opportunity to reunite and heal.”

That’s good news. But behind the announcement lie some very big unknowns about how far President Biden will end up going in the quest to restore justice.

One of these unknowns is this: With at least 1,000 migrant families remaining separated, according to government data, will parents be permitted to move to the United States to rejoin children and secure permanent protections to stay here?

Advocates for these families view this as a minimal requirement of the restitution owed to them, given the horrifyingly brutal and unjust treatment they received at the hands of the U.S. government. Yet whether it will happen remains unclear.

Lee Gelernt, a lawyer with the American Civil Liberties Union who represents the separated children, has been in negotiations with the Biden administration about their future and that of their families. He says his conversations suggest the administration might be leaning toward granting them permanent protections.

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“The Biden administration knows that if this is going to be a success, they have to provide legal status,” Gelernt told me, “and I think they will.”

“My sense is that the president believes what happened to these families was inexcusable,” Gelernt noted.

The administration has created a task force to locate all the parents, though much of the work finding them is done by advocacy groups. Of those 1,000 or so separated families, the ACLU says 455 of those children have parents who (as far as the group knows) have not been located yet.

Generally these parents were separated from kids under Trump’s “zero tolerance” policy in response to migrant families who crossed the border illegally and then sought asylum.

Because Trump officials criminally prosecuted the families — and by law children cannot be held in jail — they separated the children, who are still here with guardians, and ultimately deported many of the parents.

Trump officials also did this for the explicitly declared reason that such harsh measures might deter more migration. And as an internal review of the program found, it was undertaken with minimal regard for the traumatic impact on children and without adequate tracking policies to facilitate reunification.

Now, as these parents are located, and reunited with their children, the question will be whether to grant them permanent legal protections to remain in the United States.

It’s not clear how this might be done — there are various possibilities — and it appears the administration is exploring ways it might be achieved via executive action. Gelernt said the ACLU is urging the government to provide “a path to permanent legal status,” along with financial compensation and social services for the families.

The fact that Gelernt believes the government is moving toward doing this is heartening. And if this is right, it almost certainly reflects the intricate political realities of this complicated moment.

You may recall that one of Biden’s biggest moments at his final 2020 debate with Trump came when Biden ripped family separations as “criminal.” The Biden campaign ran an emotional ad in swing states vowing to reunite children with their parents.

But when Biden became president, the profound logistical challenges of turning around the asylum system and making it more humane helped create big backlogs in border stations and terrible headlines about a “border crisis.”

Amid all this, Biden has continued using the coronavirus-related Title 42 health rule to keep expelling asylum-seeking adults and families, and for a time declined to raise the cap on refugees. (Biden announced Monday the cap will be raised to 62,500 for this fiscal year.) Both were indefensible and led to severe criticism from Democrats and immigration advocates.

One question is whether all this criticism will intensify pressure on Biden to grant permanent protections to parents reunited with children. Judging by this new announcement, the administration badly wants to be able to point to signs of real humanitarian progress.

“Given how much heat the Biden administration is taking,” Gelernt suggested to me, the administration may believe this is a way “of regaining some credibility with advocates.”

On the other hand, if the administration is worried about “border crisis” coverage and perceptions of any failure to manage the current migrant influx, it’s possible officials might be reluctant to award families permanent protections.

Most indications are that the administration does want to do all it can to restore justice here. A DHS official says the administration will grant eligible parents reunited with kids parole here for 36 months, and the ability to apply for work authorization, and is looking at ways to achieve long-term stability for these families.

But if all that happens is that families are reunited without long-term restitution, Gelernt said, “the Biden administration will not have succeeded.”

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