Biden rescinds ‘zero tolerance’ policy but judge blocks halt to deportations

In mixed fortunes for Joe Biden’s efforts to roll back Donald Trump’s hardline immigration policies, the government rescinded the Trump-era “zero tolerance” policy that resulted in thousands of family separations at the US-Mexico border while, in a federal court, a judge blocked the new president’s 100-day moratorium on deportations.

Acting US attorney general Monty Wilkinson issued the new Department of Justice memo to federal prosecutors across the nation, saying the administration would return to its longstanding previous policy and instructing prosecutors to act on the merits of individual cases where migrants have crossed into the US unlawfully.

Wilkinson said the department’s principles have “long emphasized that decisions about bringing criminal charges should involve not only a determination that a federal offense has been committed and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, but should also take into account other individualized factors, including personal circumstances and criminal history, the seriousness of the offense, and the probable sentence or other consequences that would result from a conviction.”

The Trump administration’s “zero tolerance” policy meant that any adult caught crossing the border unlawfully would be prosecuted for illegal entry.

Because children cannot be jailed with their family members, families were separated and children into different types of detention, with minors taken into custody by the health and human services department, which manages unaccompanied children at the border.

While the rescinding of “zero tolerance” is in part symbolic, it undoes the Trump administration’s hugely unpopular policy responsible for the separation of more than 5,500 children from their parents at the US-Mexico border.

Most families have not been prosecuted under that policy since 2018, when the separations were halted, though separations continued on a smaller scale.

Biden has issued an executive order to undo some of Trump’s restrictive policies, but the previous administration has so altered the immigration landscape that it will take quite a while to untangle all the major changes.

Biden also wants to offer a path to legal status for an estimated 11 million undocumented immigrants living in the US.

Some of the parents separated from their children were deported. Advocates for the families have called on Biden to allow those families to reunite in the United States.

Trump’s then attorney general, Jeff Sessions, in 2018, along with Trump and other top leaders in his administration, were bent on curbing immigration.

The “zero tolerance” policy was one of several increasingly restrictive policies aimed at discouraging migrants from coming to the southern border.

Trump’s administration also vastly reduced the number of refugees allowed into the US and all but halted asylum at the border, through a combination of executive orders and regulation changes.

The policy was a disaster. There was no system created to reunite children with their families and some children are still separated.

A report from the DoJ’s inspector general, released earlier this month, found that the policy led to a $227m funding shortfall.

Children suffered lasting emotional damage from the separations and the policy was criticized as grossly inhumane by world leaders.

Meanwhile, a federal judge on Tuesday barred the US government from enforcing a 100-day deportation moratorium that is a key immigration priority of the new president, Joe Biden.

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US district judge Drew Tipton issued a temporary restraining order sought by Texas, which sued last Friday against a Department of Homeland Security memo that instructed immigration agencies to pause most deportations.

Tipton said the Biden administration had failed “to provide any concrete, reasonable justification for a 100-day pause on deportations.”

Biden promised during his campaign to pause most deportations for 100 days.

The order represents a victory for Texas’s Republican leaders, who often sued to stop programs enacted by Biden’s Democratic predecessor, Barack Obama.

It also showed that just as Democratic-led states and immigration groups fought Trump over immigration in court, often successfully, so too will Republicans with Biden in office.