Biden wants to undo Trump’s family separation legacy. It won’t be easy.

Biden wants to undo Trump’s family separation legacy. It won’t be easy.

January 31, 2021

President Joe Biden on Tuesday will announce a long-awaited task force that aims to reunite migrant families separated at the border during the Trump administration. But immigrant advocates and attorneys warn it’ll take much more than that to undo Trump-era policies.

In his first days in office, Biden automatically built goodwill among advocates and human rights groups just because he’s not former President Donald Trump. He also inspired optimism on day one when he presented a comprehensive immigration reform plan and signed immigration-related executive orders.

Now, he has to follow through with undoing Trump’s family separation policy and starting a reunification process, one of his signature campaign promises — and it won’t be easy.

The Trump administration oversaw the separation of more than 5,500 families — and the parents of more than 600 children still have not been located. Immigrant advocates want relief for those families, but they also want accountability for Trump officials.

“If the administration is not successful at taking steps to reunite these families and make up for the damage that was done, it is something they will hear about from the public in six months, in 12 months, in 18 months,” said Tom Jawetz, vice president of immigration policy at the Center for American Progress, a liberal think tank.

“This is something that has to get resolved,” Jawetz said.

People close to the White House say Biden and top administration officials know the task force is just a start. Biden officials both privately and publicly said they will commit political capital, energy and resources to find the parents of the children still separated, offer legal status and assistance to all the impacted families and push for changes to U.S. immigration law to ensure it doesn’t happen again.

Biden is also expected to announce executive action focused on refugee resettlement and asylum at the U.S.-Mexico border. His efforts to undo Trump-era policies will take time as the former president took more than 400 immigration-related executive actions without congressional input.

Alejandro Mayorkas, Biden’s pick to lead the Department of Homeland Security, will oversee the task force, White House press secretary Jen Psaki confirmed on Friday. Putting Mayorkas — a DHS veteran and architect of the Deferred Action for Childhood Arrivals program — in charge is a clear sign reunification will be a priority for the Biden administration.

Rollout of the task force originally was set for Friday but was delayed as Senate Republicans dragged out Mayorkas’ confirmation process, contending “there are a number of problems” with his nomination. A confirmation vote is now scheduled for Monday afternoon, clearing the way for Biden to announce the task force and a series of other immigration-related executive actions on Tuesday, Psaki said.

Republicans have been quick to criticize Biden’s immigration agenda, with some arguing it incentivizes more illegal migration and amounts to “open borders.” However, one big piece of Biden’s immigration reform bill is focused on “smart” border surveillance. Some conservatives and anti-immigration advocates said family separation was wrong, but argue the parents broke U.S. law and put their children at risk.

The task force will include officials from the DHS, Department of Health and Human Services and the State Department, according to those familiar with the discussions.

The plight of the migrant children is of special interest to first lady Jill Biden and her chief of staff, Ambassador Julissa Reynoso, who will “follow closely” the federal reunification process, Psaki said on MSNBC’s “The Rachel Maddow Show” on Thursday night. Biden and Reynoso visited a migrant camp in Matamoros, Mexico, in December 2019, Psaki added.

Reunifying the 600 children with their missing parents is just one piece of a very complicated puzzle, immigrant advocates and attorneys said.

“We will be very disappointed if the [task force]… does not address the thousands of other families that have been separated and need help,” said Lee Gelernt, deputy director of the ACLU’s national Immigrants’ Rights Project.

However, Gelernt and other advocates say, so far, they are optimistic Biden’s task force will have a broader mandate than that.

“I expect the Biden administration to want to do everything it can to help these families and do as much as possible to remove the moral stain this has put on our country,” said Gelernt, who has represented separated families in the ACLU’s case.

Part of Biden’s announcement on Tuesday could include plans to allow the families that were separated and then deported to return to the United States. Biden will also offer government resources for organizations that are already working on locating the missing parents.

“I am confident that we will ultimately find the families,” Gelernt said, “But only the government can reunite the families and provide them with legal status in the United States.”

The ACLU wants the Biden administration to allow families separated under the Trump administration to settle in the U.S. and give them some type of legal status. That’s a move Gelernt believes would be relatively easy to accomplish because the Biden administration has the power to “parole” the families into the U.S. The ACLU also wants the government to create a fund to help the families with basic needs, such as psychological counseling and medical care. Family separation causes irreparable harm to the short-term and long-term health of children, according to the American Academy of Pediatrics.

The Biden administration, in a largely symbolic step, last week rescinded the Trump administration’s “zero tolerance” policy, which referred adults who entered the U.S. illegally with children to be prosecuted by the Justice Department. The policy, first announced in April 2018, resulted in the separation of thousands of families, including those with small children. In June 2018, Trump signed an executive order to end that practice after widespread outrage. However, he never officially rescinded the policy.

The task force is not expected to handle potential investigations and criminal cases against officials who were involved with implementing the policy. However, some attorneys said they want to see Biden encourage the Justice Department to investigate and assess whether to take legal action.

Earlier this month, a report by the Justice Department’s Office of Inspector General found that then-Attorney General Jeff Sessions and top Justice Department officials moved forward with a “zero tolerance” policy aware that it would forcibly split up families and were unprepared for the impact. DHS and HHS have also issued similar reports outlining the rollout and negative impact of the policy.

Meanwhile, progressives and immigrant advocates are urging the Biden administration to push for a more permanent legislative solution by repealing Section 1325 of Title 8 of the United States Code, which makes illegal entry into the U.S. a federal crime. That piece of U.S. immigration law — which received much attention on the campaign trail thanks to Julián Castro — allowed for a policy like “zero tolerance” to be implemented. If repealed, illegal entry would still be a civil offense, which could require paying a fine, but is less punitive.

Almost 40 Democrats, including Reps. Chuy García, Ayanna Pressley and Pramila Jayapal, last week re-introduced legislation that would repeal Section 1325 and implement other measures to decriminalize illegal migration. But advocates and lawmakers who have spoken to Biden officials say the former vice president’s team has never endorsed repealing it.

“As America begins a new presidential administration,” Jayapal said in a statement supporting the bill, “we need to finally leave our country’s long history of criminalizing immigration and separating families behind.”

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