Federal judge weighs request to stop ICE practice of separating families

The front main entrance to Otay Mesa Detention Center is seen in south San Diego.
(Nelvin C. Cepeda / San Diego Union-Tribune)

A federal court judge in San Diego will decide whether to issue an injunction ordering federal immigration officials to stop automatically separating children from their parents when they are taken into custody at the nation’s border.

U.S. District Court Judge Dana Sabraw said he would issue a ruling later on a case filed by the American Civil Liberties Union that seeks to stop the practice by Immigration and Customs Enforcement of separating families.

The suit contends that the agency splits parents from children without a compelling reason, such as doubts about whether the adult is the actual parent of the child or whether the parent is otherwise legally unfit to have custody.

Sabraw seemed to be leaning toward granting the injunction and certifying a class action that would encompass children and parents — known as family units in immigration parlance — taken into custody, most of whom are seeking asylum.


But the judge also seemed to want to carefully fashion an injunction that would not intrude on the federal government’s broad authority over immigration enforcement.

The Trump administration has indicated that it would consider separating families at the border as a deterrent to other families coming to the U.S. but has not made it official policy.

While it’s not exactly known how many families have been separated, a government lawyer at the hearing did not dispute that an estimated 700 minors are currently in custody and separated from their parents.

The issue largely turns on the interplay of several legal issues — laws governing asylum-seekers, a federal law known as the Trafficking Victims Protection and Reauthorization Act and issues of due process rights under the law.


The ACLU is asking parents and children to be detained together and wants an order prohibiting ICE from splitting up families when there is no legal reason to separate them.

ACLU lawyer Lee Gelernt said that when family units are taken into custody, the government does not have any procedure to determine whether they can stay together. That violates the due process rights of the families, he said. In addition he said that the trafficking victims law requires the government to consider the “best interests of the child” when deciding where to place a detainee.

“If there is no reason whatsoever to keep them apart,” he argued, “you can’t do this to these little children.”

Department of Justice lawyer Sarah Fabian contended that there is no right for families to be detained together under the law. She also said families are separated not as a matter of policy, but often as a result of another lawful and legally authorized decision — such as when an agent decides to take a mother into custody, leaving the minor children technically “unaccompanied” under the law.

When that happens, the government is required to turn the children over quickly to the Health and Human Services agency, which then houses the children.

Sabraw focused many of his questions on the process the government goes through when dealing with a family unit. He questioned Fabian about whether the government is required to make determinations about parentage and whether a child would be safe with the adult before separating them.

He also questioned whether the trafficking law’s emphasis on considering the best interest of the child should also be considered by immigration officials. Gelernt had argued that experts say separating children from their families causes great trauma and anxiety to children, who already are spooked by fleeing from their home country.

Moran writes for the San Diego Union-Tribune.


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