A judge overseeing the effort to reunify families at the border urged opposing attorneys to get moving on a solution that would allow all reunited children to pursue their own asylum claims rather than be immediately deported with their parents.
In a court hearing here Friday, U.S. District Judge Dana Sabraw’s repeated insistence on speed and efficiency underscored a desire to close out a chapter in U.S. immigration history, despite new legal wrinkles that continue to be raised in court — including yet another related lawsuit filed late in the day in Washington.
“This is an enormous undertaking involving a situation of the government’s own making, but we will never be able to come up with a process that is perfect or restores all rights as if this incident never happened,” Sabraw said. “All we can do is the best we can do under the present circumstances.
“I think the overarching considerations are family unity and an ordered process where rights are observed, and efficiently, so that this entire incident can be wrapped up in accordance with the law and this chapter closed,” he said.
A day earlier, Sabraw issued a temporary restraining order that in effect continues a weeks-long freeze on family deportations so asylum rights can be litigated further. While the government could appeal the order, Sabraw said he hoped both sides can come to a resolution outside the courtroom in the next week.
Some 2,000 children have been reunited with their parents, but the families most affected by the order are the several hundred in family detention centers with final deportation orders.
When the families were separated, the children were taken to government shelters or placed with sponsors. Many were not given the chance to argue credible fear before an asylum officer as they would have otherwise done if kept with their parents, attorneys for the children said.
An opportunity now for a credible fear interview means that, if the child passes, then he or she and the parent would be permitted to remain together — either in family detention or paroled into the community — during the duration of the child’s case.
Meanwhile Friday, a new lawsuit filed in Washington argues that these parents should have another chance to claim asylum because their previous attempts to do so while separated from their children were flawed. Many parents were too distraught over the separation to effectively argue credible fear in their initial interviews, attorneys said. The parents also lacked the validation of testimony from their children, because family asylum cases are typically handled with parents and children together.
A handful of other lawsuits related to family separation that have been filed across the country have been transferred to Sabraw, and it is likely the new Washington one will be, too.
Although Sabraw did not directly address the asylum rights of the parents still in the U.S., he said he was less inclined to allow some of the 366 parents who have been deported to Central America and Mexico the opportunity to return to the U.S. to restate their cases.
Lawyers for the American Civil Liberties Union have argued that some parents — particularly those who spoke indigenous languages — may have been coerced into dropping their asylum claims or done so unknowingly.
The ACLU and a host of volunteers are in the midst contacting all of the deported parents to determine if they want to reunite with their children. ACLU attorney Lee Gelernt said the going has been slow, with phone calls out to about 120 parents but actual contact made with fewer than 50.
“We are unfortunately not reaching many people,” Gelernt told the judge. “Phone numbers are nonoperational or people are in hiding.”
The news tamped down the enthusiasm brought by last week’s report from the government that authorities had already been in contact with 299 parents.
Gelernt said the majority of the parents they have reached have expressed a desire to follow the government’s proposed plan, which is to fly the children to their home countries for reunification.
But a few parents indicated a desire to return to the U.S. to pick up where they left off on their asylum cases, Gelernt said.
Sabraw said opening the door to deported parents poses possible jurisdictional issues and complicated logistics, and is strongly opposed by the government.
“It seems to me in the best interest of the family, what we’re looking for is reunification, and under present circumstances that reunification ought to occur in the home country,” he said.
According to the latest data, 519 children remain separated for various reasons. Besides the 366 parents who have been deported, 19 parents are jailed or imprisoned, 36 failed background checks and 37 have other red flags under review.
Authorities report that 154 parents, many of whom were deported, have waived reunification — although the ACLU remains suspicious of that conclusion and is attempting to contact those parents to make sure that is their wish.
Of the 2,654 children initially identified as being separated, authorities found that 46 in fact were not separated from their parents, with many probably having crossed the border as unaccompanied minors.