Amid the efforts to reunify the migrant families that were separated by President Donald Trump’s notorious zero tolerance policy, one question has consistently hovered in the background like an uninvited guest: Why can’t we just give these families permanent status? After a long period of kicking the can down the road, we have arrived at the moment when the search for an answer has become urgent, if not acute.
The small group of separated parents who were recently allowed back into the country in coordination with President Joe Biden’s reunification task force were given a designation called “parole,” a brittle and discretionary measure described in U.S. law as applicable on a “case-by-case basis for urgent humanitarian reasons or significant public benefit,” which “shall not be regarded as an admission of the alien.” As newly minted “parolees,” the parents in question were granted a temporary status for a total of three years, during which they will be protected from deportation and can obtain work permits but not much more. What exactly is supposed to happen once that time is up remains very much in the air.
And yet for most lay people, it seems clear-cut. President Biden himself has referred to family separation as a “stain” and a “moral and national shame” that has to be righted. Public attention has mostly focused around the painstaking and often sluggish process to locate parents, both those still in the United States and those who were deported without their children. The Trump administration’s intentional failure to create proper records makes it so each parent who is found is something of a small triumph for the government and the group of organizations collectively tasked with reunifying these families. This is the hard part, after which the obvious next step is to reunify those families and allow them finally to remain in the U.S., their ultimate destination, as a feeble reparation for the incredible harm they were dealt.
Here, the effort encounters a major pitfall. There’s no obvious avenue in immigration law to accomplish this task, and both administration officials and the nonprofit attorneys negotiating with them are running headfirst into a legal reality much more complex than the #familiesbelongtogether hashtags and political sloganeering would suggest. So far, Biden officials have treated this as an irritating kink that will need to be ironed out at some point down the line: a mere granular detail that will be resolved once everyone manages to sit down and talk it through. On that question, Homeland Security Secretary Ali Mayorkas said, somewhat nonchalantly, “We’re going to do everything we can to make it work out.”
This stance undersells the extent to which the question of a permanent path to status is a mammoth stumbling block in the project of reunification. A failure to properly hurdle it risks grave consequences for the families the government is now trying to help.
Immigration policy is perhaps the area of domestic policy where Congress has delegated the most authority to the executive, to an extent that would be ludicrous in an arena like tax or health policy. Presidents have the power to set the cap on refugee admissions for each fiscal year, to have precedential decisions issued for the whole of the immigration court system, even to bar entire nations or categories of people from entry to the country at the stroke of a pen.
Among the few things a president categorically can’t do on their own, however, is provide that coveted plastic marker of belonging: a green card, officially known as permanent residency; a legal assurance of increased rights and a step toward naturalization. “The administration, through executive authority, can bring people to the United States. They can allow admission. They can’t regularize status. They just don’t have the authority to do it,” said Yael Schacher, immigration historian and senior U.S. advocate at Refugees International.
Some policymakers are trying to address the issue legislatively via the Families Belong Together Act, a short bill that would direct the Department of Homeland Security to grant parole to eligible children and parents and, once they are in the U.S., presumptively grant adjustment of status to permanent resident. For the purposes of this bill, eligible families would be those who were separated by DHS in instances where “the Department failed to demonstrate in a hearing that the parent or legal guardian was unfit or presented a danger to the child,” an iffy definition given Customs and Border Protection’s propensity to use thin evidence to accuse parents of criminal conduct; still, practically all families subject to the formal zero tolerance policy would qualify.
If any immigration legislation has a chance of passing, it’s this bill, which includes a very narrow band of people who are perhaps the most sympathetic group of would-be immigrants imaginable, on whose behalf millions of people express abject outrage. Family separation retains the distinction of being the only Trump administration immigration policy that Trump himself withdrew in direct response to overwhelming public pressure, as opposed to legal action (the injunction stopping further separations was issued after Trump had signed an executive order on the matter). Still, it’s far from a sure shot: The last immigration legislation that created or expanded categories for permanent immigration was signed over 30 years ago. This measure might be more similar to a private immigration bill—laws intended to provide immigration benefits to a single person or small group—yet, despite the heart-wrenching personal stories often required to have such a bill introduced on your behalf, the last one actually to make it through Congress came in 2012.
This is why hundreds of thousands of Deferred Action for Childhood Arrivals holders have spent a near-decade in a liminal state of legality, neither fully undocumented nor possessing any formal status. The DACA program was created by President Barack Obama in 2012, following Congress’s failure to reach a legislative solution after what was even then over a decade of attempts to protect so-called Dreamers—immigrants who had been brought to the country without documentation as children.
The Dream and Promise Act of 2021 is the latest iteration of the legislation first introduced almost 20 years ago, facing long odds in the Senate even as the DACA program remains under legal threat. This is despite the fact that protections for Dreamers have remained broadly popular among the electorate, with an astonishing 74 percent of U.S. adults supporting a path to permanent status as of last year. Meanwhile, DACA recipients—many now in their thirties—continue to live and work in a sort of facsimile of regular American life, identical in most respects to their U.S.-born counterparts but always a single misstep or court decision away from a total unraveling.
The Dreamers’ plight is a stark warning of what could befall reunified families if Congress fails to pass legislation creating a path to residency and the administration cannot come up with a viable alternative. For those returned under a parole designation, the parole can be renewed but never transformed into residency. Many of those who were never deported have ongoing asylum cases, cases they could very realistically lose. The court settlement in the class-action family separation case Ms. L v. ICE prevents parents and children from being deported but doesn’t grant additional status. Like their deported and returned counterparts, they could end up in a sort of limbo.
Some observers have brought up the potential use of visas for immigrants who assist in the solving of crimes, namely the U visa, which lets law enforcement authorities certify that someone has cooperated with an investigation and which also grants work authorization. However, it is not a sure path to residency and, given a cap of just 10,000 per year, these visas have a backlog that can stretch up to 15 years from conditional approval to an immigrant actually receiving the status.
A recent regulatory change has at least made it possible for people to receive work authorizations and protections from deportation while they wait, but that doesn’t account for the on-average four-year wait before even conditional approval is granted. There’s also the detail that granting such visas would require a law enforcement entity, be it federal, state, or local, to formally begin criminally investigating Trump administration officials over an official federal policy, an enormous legal and political can of worms.
Lee Gelernt, the deputy director of the ACLU’s Immigrant Rights Project and one of the lead attorneys in the Ms. L case, said that the organization hoped Congress would “step in, given that this was a historic moral wrong, and grant this discrete group of families, who have been so deliberately harmed by our government, permanent status. But we don’t intend to wait for that as the only option.” The attorneys have been negotiating with the government and come up with some potential executive solutions, most of which involve asylum. The asylum process is typically fraught, confrontational, and full of pitfalls, but there are steps the administration can take to make it more straightforward. “The government does not have to contest asylum, if they believe that asylum is warranted,” he said.
This could take the form of having the ICE prosecutors, who are typically arguing against applications, simply decline to challenge any evidence or arguments, though Gelernt says the exact approach would be case by case. “It just may require different technical mechanisms. Some people’s cases will need to be reopened because they were too traumatized to properly present their asylum case, some people have not yet applied for asylum,” he said. “The bottom line is that we think, overwhelmingly, this group of people are entitled to asylum.”
Still, while this would go a long way toward greasing the asylum wheels, it would be far from an absolute guarantee of success. Asylum has been getting harder and harder to win, with a record 73.7 percent of claims rejected last fiscal year, and though the Biden administration has begun to unwind some draconian, Trump-era immigration court policies, there remain high hurdles that must be cleared. While immigration judges are by no means independent—they are actually Justice Department employees very vulnerable to executive tampering and pressure—neither the president nor the attorney general can really order them how to decide specific cases.
Having these processes go before a nonadversarial asylum officer instead—which parolees could do through so-called affirmative applications, and those who entered illegally might be able to do so under a plan the administration is reportedly considering—would be easier, but there are no guarantees. As Schaher put it, “You still have to meet the definition” of asylum, which is really rather narrow. Gelernt acknowledges that obstacle: “The government can do things, I think, in buckets. But ultimately, there can’t be a grant of asylum by a categorical order.” The Department of Homeland Security didn’t respond to questions about potential solutions.
The family separation catastrophe was never going to have a happy ending, and the notion that we could somehow make these families whole while neatly undoing all the harm that’s been done to them has been misguided since the beginning. However, it seems like the absolute minimum here is to allow these families, finally, to have the safe haven they first sought three years ago. The ridiculous strictures of our immigration law and our calcified political reality have put even those scraps in peril.