Hours after a Trump Cabinet member told Congress that the administration would not reunite migrant children with parents still held in immigrant detention facilities, a federal judge in San Diego ordered the government to begin doing just that.
In a preliminary injunction issued late Tuesday, U.S. District Judge Dana Sabraw ordered the government to reunite nearly all children under age 5 with their parents within 14 days and older children within 30 days.
The administration’s actions related to separating families “belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution,” the judge wrote. “This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children.”
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 planned to hold them in custody until hearings are complete — a process that can take months and in some instances years because of a backlog of several hundred thousand cases.
And 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 a “zero tolerance” policy that required prosecution of all adults crossing the border — and separate detention of any minors with them.
His statement brought angry protests from Democrats and immigrant advocates.
“The administration is holding children hostage to push parents to drop their asylum claims,” Sen. Dianne Feinstein (D-Calif.) tweeted.
The uncertain fate of the children, and wrenching reports of their plight, has created a political firestorm for the White House and a nightmare for the families affected. In some cases, parents have been deported without their children, or infants and young children have been moved to distant states while their parents await court processing.
The “zero tolerance” policy already has run partially aground over a lack of resources. On Monday, Border Patrol officials announced they had stopped handing over immigrant parents for prosecution because they were running out of beds. The reversal means newly apprehended families, in theory, could be released pending their court dates.
The limit on how long children can be held in immigrant detention facilities stems from a 1997 court ruling known as the Flores settlement. The administration has asked a federal judge to modify those rules and allow families to be held together in custody for longer periods.The Obama administration made a similar request in 2015, but a judge refused.
The White House has also asked Congress to change federal law to allow longer detentions. That process is moving slowly, and President Trump has proved an uncertain ally for Republican leaders, vacillating as to whether he wants new legislation or not.
The House is scheduled to vote on a Republican-drafted bill on Wednesday that would overhaul the immigration system, but its prospects are dim — and it almost certainly would die in the Senate.
Last-minute arguments over what should be in the bill led one of its lead sponsors, Rep. Jeff Denham (R-Turlock), to declare the measure essentially dead.
“At the end of the day it is very clear that the Republicans cannot pass an immigration bill,” Denham said late Tuesday. “I think it’s a very clear message that Democrats and Republicans need to work together on an American solution. That’s the only way this is going to get done.”
If the bill fails, as expected, the House may take up narrower legislation focused specifically on family separation. But Congress is set to recess on Thursday for an extended Fourth of July holiday, so the schedule will allow just hours to consider that proposal.
Trump signed an executive order last week that he said would halt the separation of parents and children by detaining families together. Since then, his administration has struggled to articulate a plan to reunite families.
Over the weekend, the departments of Homeland Security and Health and Human Services released a joint statement saying they had come up with a central database to link families and were working on ensuring children stayed in contact with their parents.
On a conference call with reporters Tuesday, Health and Human Services officials refused to say whether they were still receiving children taken from parents at the border. The government has not released data on the ages of children in custody, nor how many in total have been separated or released.
Jonathan White, head of the Office of Refugee Resettlement, a branch of the Health and Human Services Department, said only that the department was working with other agencies “to facilitate reunification with a child as soon as that is practical.”
He suggested the department’s sole responsibility for now “is to determine whether the child has a safe place to go.”
White said his office knew “the status, whereabouts and care of every child” in its custody. “We have always known where all the children are,” he said.
But Azar conceded in his Senate testimony that the department has not yet been able to put all the parents in communication with their children.
“We want every child and every parent to be in communication at least twice a week so that they're talking, by Skype or by phone,” he said. “We want this to happen.”
He also warned that if parents remain in a detention facility and the agency gives custody of a child to someone else — a relative in the U.S., for example — the parents eventually might have to go to court to get the child back.
“We cannot sort of pull a child back from a relative. We don't have the legal authority,” he said.
Lawyers decried officials’ decision not to reunite children with their parents in detention as inhumane.
Jodi Goodwin, a south Texas immigration lawyer who mobilized a rapid-response team of attorneys to aid immigrant parents detained at the Port Isabel Detention Center on the Texas Gulf Coast, said officials needed to release parents with ankle monitors or bond so that they can be reunited with their children.
“That’s the only way to end the tragedy that has happened,” she said.
Zenen Jaimes Perez of the Texas Civil Rights Project said parents were so desperate they would waive their rights, drop their asylum claims and agree to deportation, not understanding that even that choice does not guarantee they will see their children again. Of the 400 parents his organization has interviewed, only four have been reunited with their children, he said.
“We know a lot of people are making these decisions under duress, with no counsel, and that is particularly cruel,” he said.
As families grappled with that choice, 17 states — including California — and the District of Columbia filed suit against the administration over its detention policies. The case joins a growing pile of lawsuits against the administration’s policies.
The continued action in Congress and the courts will keep the emotion-charged family separations in the public eye as lawmakers return to their districts four months before the midterm election.
Trump has blamed Democrats for the stalemate in Congress, but he has given wildly mixed signals about what he wants from Republicans.
The president initially said he opposed the compromise bill, then told Republican lawmakers he was “1,000%” for immigration legislation, and then tweeted that Republicans “should stop wasting their time” by trying to pass an immigration bill before the November election.
House Republican leaders acknowledged that they still don’t have the 218 votes needed to pass the compromise bill despite holding 235 seats in the chamber. They blamed Democrats, however, for not supporting their bill.
“Why doesn’t a few Democrats move over? If they are honest about wanting to secure the border, here is the opportunity,” House Majority Leader Kevin McCarthy (R-Bakersfield) said Monday on Fox News.
Few Democrats are inclined to help rescue Trump from a crisis he created. Moreover, Democrats had no role in crafting the bill.
“It’s just a bad bill. It has nothing to do with even being locked out of the process — it’s just a bad bill,” Rep. Pete Aguilar (D-Redlands) said.
At his weekly news conference Tuesday, House Speaker Paul D. Ryan (R-Wis.) wouldn’t discuss a proposed bill targeting only the family separations. A Senate proposal would add 225 immigration judges and expedite court proceedings for families, and there are indications that plan could get a vote this week.
Ryan said he wants to “do as well as we possibly can” in Wednesday’s vote, adding, “If that doesn’t succeed, then we’ll cross that bridge.”