Adults who are in reinstatement proceedings, and therefore their kids who are with them, are in a bad and dangerous situation because,
a) only eligible for withholding of removal or deferral of removal under the Convention Against Torture (CAT). Withholding of removal and deferral of removal under CAT do not, in themselves, benefit the minor child. A minor child can’t acquire withholding or deferral of removal from her or his parent.
b) The fact that the mother in reinstatement hearings is no eligible for asylum necessarily means that the standard of proof she must meet is one of “more likely than not” rather than the asylum standard’s more generous “well-founded fear” standard of proof. The mother must prove that it is more than 50% probable that she will be persecuted (based on one of the five designated factors) or tortured (by government officials, or with government acquiescence).
c) The time from interview to finding is much longer, therefore leaving people in limbo for months;
d) Judges believe that they do not have authority to set bond for adults in reinstatement of removal proceedings, despite some authority to the contrary (minority opinion).
e) Judges also have believed that they do not even have the authority to release children from detention along with their mothers, despite the Flores settlement and despite specific regulations allowing for simultaneous release of parents with children.
f) The previous removal or deportation CAN go very far back. The section of the law is retroactive and applies to deportations that took place even before the effective date of IIRIRA in 1997. A mom may have lived in the U.S., or tried to come to the U.S., and been deported or removed, long before a child was even born. That previous deportation or removal will still have very very negative effects on the child.
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