The U.S. Will Return Deported Aliens to the U.S. under Class Action Settlement Agreement
FAIR Staff | October 2023
Last week, Attorney General Merrick Garland announced that the U.S. government will return deported aliens to the U.S. and provide them with health insurance, housing assistance, and legal services as part of a settlement agreement to a class action lawsuit.
The lawsuit was originally filed by a woman from the Republic of Congo who entered the U.S. illegally with her seven-year-old daughter in November 2017 at the San Ysidro Port of Entry near San Diego, California. Because federal law requires the government to detain asylum-seekers while their cases are being adjudicated, federal officials detained the mother but sent the child to be cared for by the Office of Refugee Resettlement (ORR), which manages the government’s unaccompanied minors program.
With the help of the ACLU, in 2018, the mother filed a class action lawsuit in the Southern District of California claiming Immigration and Customs Enforcement (ICE) and other agencies within the Department of Homeland Security denied her of her due process under the 5th Amendment to the United States Constitution. The plaintiffs asked that the court certify a class defined as all adult aliens with a minor child who are separated by DHS absent a demonstration in a hearing that the parent is unfit or presents a danger to the child. In addition, they asked the court to issue an injunction ordering the government to reunify alien families and to cease the separation of adults from children for the purposes of immigration enforcement. The federal district court certified the class.
The litigation continued into 2021 until the inauguration of President Biden, who immediately entered into settlement negotiations with the plaintiffs. Negotiations broke down for a period after reports surfaced that the Biden Administration was considering paying individual aliens up to $450,000 and illegal alien families up to $1 million. However, last week, the parties announced they had mutually agreed upon the terms.
While cash payments are not part of the settlement agreement announced last week, the Biden Administration has agreed to give the illegal alien plaintiffs everything else they demanded. Illegal aliens who qualify as class members include parents, legal guardians and children who were separated from their family members at the U.S.-Mexico border during all four years of the Trump Administration (January 2017 to January 2021). This covers illegal aliens who are still in the United States and those who were deported. Parents with certain criminal convictions will be presumptively ineligible for parole, but the agreement provides that DHS is authorized to waive any criminal history after a case-by-case review. Notably, these waivers will be granted by the Homeland Security Family Reunification Task Force, which is controlled by Homeland Security Secretary Mayorkas and other political appointees.
Under the agreement, the U.S. government will allow illegal aliens who were deported – and anyone in their immediate household – to apply for parole to “reunify” with their family member. It further requires that the U.S. government pay the aliens’ airfare or other travel expenses. Class members who are still in the United States may apply for parole-in-place in order to stay in the U.S. Parole will be offered in three-year increments, which may be renewed. Aliens will also be granted work authorization.
In addition to offering class members parole, the agreement also requires the government to provide, at taxpayer expense, housing assistance, health insurance, behavioral health services (i.e. child and parent counseling), and assistance finding free legal services for a certain period of time. The government will also allow class members to file asylum applications with USCIS (which is generally easier than going through the immigration courts), allow illegal aliens whose asylum applications were denied to reapply, and waive the one-year deadline for filing an asylum application.
Aliens will have three years from the effective date of the settlement to register with the government in order to be considered for benefits. To help illegal aliens participate in the settlement, the government has created a website, together.gov, with a sister site in Spanish, juntos.gov, where illegal aliens who believe they qualify as class members can sign up for benefits. Current estimates suggest at least 4,000 illegal aliens, if not more, will qualify.
The settlement also handcuffs how our immigration agencies will enforce the law in the future. It prohibits Customs and Border Protection (CBP) and Immigration and Customs Enforcement from separating families for a period of eight years, except in limited circumstances. These include when CBP determines that “the child or accompanying parent or legal guardian presents a public safety or national security risk to the United States” or the parent/legal guardian poses a threat to the child. If CBP wants to separate a child and parent because it does not believe the parent is actually the child’s biological parent, it must offer to do DNA testing, subject to the parent’s permission and the parent is allowed to challenge the accuracy of the results.
Finally, under the agreement, CBP and ICE agree not to refer a parent traveling with a child for prosecution under 8 U.S.C. 1325, which makes crossing the border illegally a crime. This non-prosecution agreement is tantamount to the nullification of federal law, which classifies illegal entry as a crime regardless of whether the perpetrator is a parent traveling with the child. Moreover, all of these handcuffs on immigration enforcement, which will last for a period of eight years, leave CBP and ICE virtually no choice; they will have to immediately release all family units who illegally cross the border. This will only encourage more families to make the dangerous journey through Central America toward the southern border and empower the cartels to expand their smuggling and trafficking operations.
According to the Wall Street Journal, the DOJ willingly agreed to these limitations on its agencies’ actions to prevent a future president from imposing strict enforcement policies in the future. This settlement will certainly accomplish that. Sadly, the handcuffs placed on immigration enforcement will only encourage more families to make the dangerous journey to our southern border. And, as family units make up an increasing portion of the illegal alien population (31 percent in FY 2023), Congress will need to step in and act. First, Congress must adopt legislation that reverses this settlement agreement and the Flores settlement agreement, which requires the release of children whether they are accompanied by family members or not. Then, Congress must ensure that family detention centers are funded, that more space is added, that families are detained together, and, for families who don’t qualify for asylum, they are promptly sent home through expedited removal.