Class action restores full US asylum rights to forcibly separated migrant children

Hogan Lovells has worked pro bono to reach a class action settlement with the US government which guarantees forcibly separated migrant families have another chance to seek asylum in the country amid claims mandatory procedures were ignored.

Class action restores full US asylum rights to forcibly separated migrant children A rally in San Diego, California, attracts a crowd of protesters, with many carrying pro-immigrant signs and posters. (Credit: iStock/shakzu)

M M M v Sessions got a final settlement on 15 November. Dana Sabraw, the district judge who oversaw the case, called the settlement “fair, reasonable and adequate.”

The class action was triggered by the consequences of a preliminary injunction in another migrant case (Ms L v ICE) back in June. That injunction ordered US Immigration and Customs Enforcement to reunify migrant parents with their children.

In Hogan Lovells’ M M M v Sessions case, the claimants (migrant parents from Honduras and Guatemala) say the government responded to the Ms L v ICE injunction by giving them two choices: being reunified with their children and deported together; or being deported alone while their children make a claim. This resulted in many families agreeing to be deported together, but before their children had a chance to claim asylum through a “credible fear” interview.

The right to a credible fear interview was at the heart of the M M M v Sessions case. These interviews are conducted with US border officials and establish fear of either persecution or torture. If interviewers find an individual was persecuted or has a well-founded fear of persecution because of their race, religion, nationality, social group, or political opinion, they can make an asylum claim before a judge. Hogan Lovells’ argued the process is guaranteed by the Immigration and Nationality Act and the US Constitution’s due process clause.

M M M v Sessions was filed in July when the claimants sued several state agencies. They claimed their children’s right to asylum through a credible fear interview had been ignored. They also said their own credible fear interviews had been conducted under emotional stress, having recently been separated from their children (US President Donald Trump’s decision to send all adult migrants who crossed the border illegally for criminal prosecutions meant their children were incarcerated in different facilities).

The 15 November settlement reinforces migrants’ right to a credible fear interview. Now, children in independent removal proceedings will be assigned to their parents’ case and can obtain their own credible fear interviews – regardless of how their parents’ interviews go – if they also express fear of return. When parents already have received a positive credible fear finding, their children will join their asylum proceedings in immigration court.

The settlement also means the migrant parents who attended credible fear interviews and received negative responses (resulting in a final order of removal) will have another interview as part of a “good faith review.” Alternatively, if the parent received a negative finding after the good faith review was complete, their children would be entitled to their own interview. If the child's interview was positive, they would still have a chance to pursue asylum in immigration court, regardless of their parents' outcome.

Zachary Best, a senior associate that worked on the settlement, told Latin Lawyer that the interviews were “fundamentally unfair by virtue of them being conducted after they were separated from their children.” He adds that many, if not all, separated parents were unable to meaningfully participate in their original credible fear interviews because of the trauma, anxiety, and confusion caused by their children being separated from them.

Best also criticises the government’s willingness to deport children without giving them a credible fear interview. “Everybody who enters the country, legally or illegally, has to have some sort of pathway to seek asylum in the US,” he says. “Those who enter without inspection are guaranteed an interview and many were not getting interviews.”

Hogan Lovells’ offices in Miami, New York, Washington, DC, Mexico City, and Rio de Janeiro first got involved in the US migrant crisis by working with families detained at the Texan facilities in Karnes and Dilley from May to August. A team of more than 30 lawyers worked 13-hour shifts to prepare women and children separated along the US-Mexico border for their credible fear interviews.

Best told Latin Lawyer that he and his colleagues got involved in the case for moral and legal reasons. “It is hard to imagine a more vulnerable group of people than those fleeing violence to come here, arriving with no money and in many cases, little knowledge of the language,” he says. “The law should be there to protect them, and in this instance, it was not. As legal professionals, we have a duty to protect those who cannot protect themselves.”

Best adds that the majority of the families they counselled at the centre have managed to obtain favourable rulings from asylum officers. “Nearly all of the reunified families who were detained at the Karnes and Dilley detention centres in Texas that elected to go through the settlement procedures have now completed them. This means the parents have received their good faith reviews and the children have been screened for credible fear where necessary.”

Successfully seeking asylum in the US can be an arduous process, despite the recent settlement. If migrants obtain a favourable ruling in a credible fear interview, they are given a hearing date, which can be several months away. The individual then presents their case in more detail to an immigration judge, who grants a verdict. Decisions in favour of deportation can be appealed before a federal court.

US president Donald Trump came under fire for immigration-related issues last week, after border agents sprayed tear gas at a crowd of migrants trying to cross the San Ysidro border. Trump has since defended the use of the gas and said that no one will enter the US “unless they come in legally.” He added that many of the migrants, who include women and children, are “stone cold criminals.” The US president also said that his government will “close the border permanently, if need be”.

Counsel to M M M

Partners Justin Bernick and Theodore Clark Weymouth and associate Zachary Best in Washington, DC, partners Oliver Armas and Ira Feinberg in New York, partner Michael Maddigan in Los Angeles, partner Katherine Nelson in Denver and associate Haley Costello-Essig in Northern Virginia

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