Judge to consider how quickly families can be deported after reunification

How quickly can immigrant families be removed from the U.S. after being reunited?

It’s the latest question that a San Diego federal judge will be considering in light of the Trump administration’s massive effort to reunify parents separated from their children at the border.

More than 1,000 children age 5 and older have already been reunified with their parents under U.S. District Judge Dana Sabraw’s court order, and hundreds more are expected to be by Thursday’s deadline — an achievement Sabraw called “remarkable” during a hearing Tuesday.

Although, clearly, not all 2,551 children will be reunited. More than 400 parents are believed to have already been deported, while possibly a couple hundred others were released throughout the U.S. and haven’t been located. At least 64 parents have criminal records or are ineligible for reunification for other reasons.

For the 900 parents eligible for reunification who have final orders to be deported, the American Civil Liberties Union wants to make sure they don’t leave the country until they fully understand their rights — and their children’s rights.

The ACLU, which brought the class-action lawsuit on behalf of separated parents, is proposing a seven-day waiting period between reunification and removal. The time allows for the families to meet with attorneys and advocates that have been assigned to the children during separation to determine if the children have unique immigration claims to pursue. That could be an important factor for parents in deciding whether to leave the country as a family unit, or to leave their children behind.

Sabraw last week decided to halt all deportations of reunited families until the issue could be briefed further. He could issue a ruling as soon as Friday, following a hearing.

The government calls the waiting period “unwarranted” and pointed out that most of these families have had the past week to discuss their options — either because they’ve been reunified or because they’ve been in communication with their children.

“This Court should not be the arbiter of a seven-day waiting period during which families would be charged with choosing a second time — after they have already chosen to be together under this Court’s procedures — whether to leave their children in the United States,” the government argued in a motion filed Tuesday morning. “Class members have no entitlement to such a waiting period, and no entitlement to be re-separated at all.”

In a declaration, David Jennings, an acting assistant director at Immigration and Customs Enforcement, said that such a waiting period would further exacerbate a backlog in removals and tie up limited bed space in family detention facilities.

“A longer time frame would create inefficiencies, increase cost, and significantly hamper ICE’s efforts to expeditiously enforce removal orders,” he wrote. “Each additional day delay in removal would not only deplete limited taxpayer resources, but they also extend aliens’ time in detention and exclude detention beds being used during the delay.”

Perhaps more importantly, the government argues that the district judge does not have the legal authority to order a stay in removals.

The government says that the current process in place notifies parents of their rights and options with a court-approved form. The form gives them 48 hours to either elect to reunite with their kids, to waive reunification and be removed alone, or to discuss the issue further with an attorney.

The government said as many as 200-plus parents have so far elected to be removed without their children.

While attorneys for the government said they might agree to a four-day waiting period, they would not agree to making it retroactive for the parents who have already waived reunification, saying “an accommodation of this nature … is not appropriate.”

ACLU attorney Lee Gelernt argued that volunteer attorneys who have been sent to counsel families are reporting how difficult it has been to have meaningful consultations at detention centers.

“Things are really a mess on the ground,” Gelernt told the judge — a characterization that Deputy Assistant Attn. Gen. Scott Stewart said he “strongly” contested.

Gelernt said the government has spoken of potential plans to use one facility — Karnes Family Residential Center in Texas — to process hundreds of these families and allow for volunteer attorneys to counsel them. Gelernt said that can’t possibly be done in a few days.

“We desperately need those seven days,” said Gelernt.

In a press call with reporters earlier in the day, immigrant advocate volunteers provided some context, describing chaotic scenes of families that don’t understand their options or what is about to happen to them.

Shalyn Fluharty, managing attorney of Dilley Pro Bono Project, described mothers and children arriving at the South Texas Family Residential Center with “palpable trauma.”

“We cannot engage in conversations with our clients that have anything to do with separation because the parent and child completely crumble in tears,” she told reporters.

Many of the parents have final orders for removal but their children have notices to appear in separate immigration proceedings, she said, presenting parents with a difficult decision.

Katie Shepherd, national advocacy counsel for Immigration Justice Campaign, told reporters that the government was using multiple layers of coercion to remove families, including asking parents to sign paperwork they did not understand, not giving them the chance to ask questions, and telling parents that signing the papers would be the quickest way to be reunited with their children.

Reunifications have been happening at eight designated immigration facilities and at the offices of local social service agencies.

At three detention facilities near El Paso, Texas, some reunions are happening in the parking lots, with parents outfitted with ankle monitors so they can be released into the community while their immigration cases are pending, according to immigrant advocates monitoring the situation.

Some families are being detained together, but it is unknown how many. When the judge asked government attorneys for a number, they could not answer.

When the deadline passes Thursday, attention will turn toward finding hundreds of parents deported without their children, many likely back in Central America.

Sabraw expressed disappointment that families remain apart and has ordered the government to produce a list of those parents to the ACLU by Wednesday so partner organizations can help with the search mission.

He placed blame on the Trump administration for having “a policy in place that resulted in a large number of families being separated without forethought as to reunification” and failing to track separated children and parents as family units.

“That’s the deeply troubling reality of this case,” he added. “There has to be an accounting.”

Staff writer Kate Morrissey contributed to this report.

kristina.davis@sduniontribune.com

Twitter: @kristinadavis