What did the judge rule?
U.S. District Judge Dana Sabraw issued a preliminary injunction Tuesday that calls for all children affected by the Trump administration’s “zero-tolerance” immigration policy to be reunited with their parents within 30 days.
Under the order, children younger than 5 must be reunited with their parents within 14 days, while older children must be reunited with their parents within 30 days. Within 10 days, federal authorities must allow parents to call their children if they’re not already in contact with them.
“The unfortunate reality is that under the present system, migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process,” Sabraw said.
What is the case about?
The ACLU made the injunction request as part of its class-action lawsuit filed on behalf of two women — one who was arrested after crossing the border illegally and one who claimed asylum at the border — who were separated from their children. Sabraw earlier this month had decided the lawsuit against the government’s family separation practice could move forward, calling the practice “brutal, offensive” and contrary to “traditional notions of fair play and decency.”
Under U.S. Atty. Gen. Jeff Sessions’ zero-tolerance policy, which criminally charges all unauthorized immigrants caught crossing the border, defendants are detained within the criminal system, often allowed to plead guilty and sentenced to serve little to no prison time. That process usually takes a few weeks to a month, then they are taken into immigration custody for the civil deportation process to begin.
What was the ACLU’s argument to the court?
The American Civil Liberties Union called for reunifications to occur during the civil process.
In declarations, two officials from the Department of Homeland Security and the Department of Health and Human Services describe existing ways children are reunited with parents before deportation and how parents in civil immigration custody can speak with separated children via video or phone.
The declarations do not detail a process for reuniting families prior to deportation and say family residential centers, where children and parents can be detained together, have limitations.
The ACLU said that is why the court must intervene — and points out that Trump’s executive order halting the separation of family’s can be rescinded at any time.
“The government has no meaningful plan for swiftly ensuring that such reunifications occur,” ACLU attorney Lee Gelernt argued in his motion. “Thus, thousands of families remain separated, and many parents have no idea where their children are or how to find them. With each added day of separation, the terrible trauma inflicted by the government on both parents and children continues to mount. Many of the children are babies and toddlers who every night are crying themselves to sleep wondering if they will ever see their parents again.”
In its filing, the ACLU included several declarations from attorneys and immigrant advocates who provide specific examples of clients who are awaiting deportation. The immigrants said they were given an option to be deported with their children, but after hearing of others who have been deported without their children, they fear the same will happen to them.
“Parents who are facing imminent deportation without their separated children are in particularly grave need of immediate relief,” the ACLU’s brief argues.
The process for parents to find where their separated children have been detained also has been challenging, Gelernt argued. A hotline number regularly puts callers on hold for 30-minute periods, a stretch that is “infeasible for detained parents.” Lately, callers have been met with a busy signal.
What is the government’s position?
Government lawyers had argued the judge didn’t need to get involved.
The executive order already addresses the family separation concerns outlined in the ACLU lawsuit and says federal agencies are working on reunification of the 2,000-plus families who remain apart.
“This Court should give the agencies time to take action, rather than issuing an injunctive order,” the government’s motion urges. “A court imposed process is likely to slow the reunification process and cause confusion and conflicting obligations, rather than speed the process of reunifying families in a safe and efficient manner.”
Lawyers with the Department of Justice argued that a court injunction would unnecessarily restrict the ability of immigration authorities “to carry out its immigration enforcement mission and address smuggling concerns,” and said the government must follow standards that protect children from parents who would pose a risk to the child’s welfare or from smugglers.
What is the next step?
The order appears to set the stage for a legal clash over a crisis that was created by the White House and has sown increasing levels of fear and confusion.
Earlier Tuesday, Health and Human Services Secretary Alex Azar, testifying on Capitol Hill, said the only way parents can quickly be reunited with their children is to drop their claims for asylum in the United States and agree to be deported.
If parents pursue asylum claims, administration officials plan to hold them in custody until the hearings are complete — a process that can take months, and in some instances years, because of a backlog of several hundred thousand cases.
While that process takes place and the parents are in custody, their children would not be returned to them, Azar said, citing current rules that allow children to be held in immigrant detention for no more than 20 days.
“If the parent remains in detention, unfortunately, under rules that are set by Congress and the courts, they can’t be reunified while they’re in detention,” Azar told the Senate Finance Committee. He said the department could place children with relatives in the United States if they can be located and properly vetted.
Azar’s department has custody of 2,047 children separated from their parents after they were apprehended crossing the border illegally since May. That’s when the Trump administration began enforcing the zero tolerance policy.