The Trump administration is appealing a federal judge’s preliminary injunction against family separation, saying it would not derail the effort to reunify hundreds of migrant children who remain apart from their parents or guardian as a result of the administration’s zero-tolerance immigration policy.
The notice to appeal was filed with the U.S. 9th Circuit Court of Appeals late Friday, just under the 60-day deadline.
Hours earlier, Deputy Assistant Atty. Gen. Scott Stewart warned the judge overseeing the reunifications that the notice of appeal was coming. But he assured the judge that the notice is “standard protocol” and would not disrupt the ongoing reunification effort.
The notice preserves the government’s right to appeal the larger issues at stake surrounding families being processed through the U.S. immigration system.
“There are continuous issues being raised by various plaintiffs that have created continued doubt as to the scope and application of the court’s injunction,” Stewart said.
U.S. District Judge Dana Sabraw of San Diego thanked Stewart for the heads-up, saying: “I fully understand the need for all parties to protect their rights.”
While Stewart did not provide specific examples, there have been a number of recent cases that illustrate the complexities involved.
For instance, does the injunction cover families that come with both parents if only one is separated? That question was at the forefront of a recent San Diego case involving three asylum-seeking Salvadoran fathers who were put into adult detention while their wives and children went to family detention centers together, then were later released.
The government’s warning of an appeal came at the end of a weekly status hearing on a landmark lawsuit brought by the American Civil Liberties Union.
The parties are well into a massive effort to reunify some 2,500 migrant children separated from their parents and placed in detention centers after trying to cross illegally into the U.S.
More than 1,900 children have rejoined their parents since the court’s order, while another 200 have been placed with sponsors or have turned 18, according to the latest figures from the government.
The focus now is on locating the deported parents of 343 children and then reuniting those families who wish to.
A steering committee of pro-bono lawyers and nonprofits has been conducting a massive telephone campaign to contact the parents, reaching 225 parents thus far in Mexico and Central America.
Another six parents were reached in person by Justice In Motion representatives who have ventured into remote villages.
For families who want to reunite, the plan calls for flying children to their home countries.
Sabraw on Friday called the progress report “very encouraging.”
Meanwhile, about 140 children remain in government custody for other reasons. Many are ineligible for reunification because their parents failed a background check or are in criminal custody. Others have parents who have waived reunification.
Several related legal issues that have arisen during the reunification effort remain unresolved. One involves whether children will be permitted to pursue their own asylum cases or whether their parents — many of whom were extremely distraught about being separated during their own credible-fear interviews — will be given a second chance to apply for asylum. Other areas of litigation include whether parents who waived their asylum rights due to misunderstanding or alleged government coercion will get another try.
Sabraw has asked the opposing parties to try and negotiate these issues informally for now, though he has said that he leans toward allowing children to pursue asylum.
Once the reunification effort wraps up, Sabraw has asked the government to more fully address another arm of the preliminary injunction that prohibits the future separation of families once the parents are out of criminal custody.
That area is where the government will likely focus its appeal.
Sabraw has made it clear that nothing in his injunction impedes the government’s discretion to enforce immigration law or to detain people.
The legal consensus — for now — is that detained parents can either decide to keep their children with them in immigration detention, or parents can decide to let their children live in government youth shelters with the possibility of placement with a sponsor.