** LEGAL UPDATE **
Amidst widespread outrage over family separations along the southern United States border, a federal judge has ordered the U.S. government to reunite parents with their minor children. On June 26, 2018, Federal Judge Dana M. Sabraw ordered that federal officials cease detaining parents separately from their children, absent a determination that the parent is unfit or the parent declines reunification.
Under the Trump administration’s zero-tolerance policy, which involves criminally prosecuting all immigrants caught illegally crossing the southern border, thousands of parents and children were detained and separated.
The Department of Health and Human Services (HHS) has temporary charge of all the children. HHS sent children to shelters or foster programs, sometimes thousands of miles away from where their parents were detained. Keeping track of families proved to be a difficult task for the government. Parents who were separated from their children often did not know where their children were being held and were unable to communicate with them.
This practice was widely criticized by politicians on both sides of the aisle, as well as non-partisan organizations such as the American Academy of Pediatrics.
On June 20, 2018, President Trump signed an Executive Order that purported to end his family separation policy. However, that ruling did not extend to the thousands of children and parents already in custody who had been forcibly separated. Those who remained separated were left in limbo.
The American Civil Liberties Union (ACLU) filed a federal lawsuit, Ms. L v. ICE, on behalf of multiple plaintiffs who had been separated from their children and not yet reunited. Ms. L, the named plaintiff, was a mother from the Democratic Republic of the Congo, who was forcibly separated from her seven-year-old daughter and detained in the United States while seeking asylum. The lawsuit states that the federal government policy of separating families violates the due process clause, federal laws protecting asylum seekers, and the government’s own directive to keep families intact.
The ACLU brought the suit in the Southern District of California on behalf of the plaintiffs and all other parents still separated from their children. The presiding judge, Dana M. Sabraw, was nominated by President George W. Bush in 2003.
Judge Sabraw issued a preliminary injunction ordering that the federal government reunite parents and children who were detained separately and create a timeline for reunification. The judge criticized the government’s slow response and lack of organization, pointing to concerns that several children had been lost in the system. “The facts set forth before the court portray reactive governance—responses to address a chaotic circumstance of the government's own making,” he stated.
Judge Sabraw ordered officials to reunite all parents with their children under the age of five by July 10, 2018. The deadline for reuniting parents with children five and older is July 26, 2018.
The government has had difficulty complying with the injunction and failed to reunite all of the families with children under five by the July 10 deadline. The Justice Department estimated that 54 out of 102 children under the age of five will be reunited with their parents on July 10, 2018. Some of the parents of these children have already been deported back to their home country without their children, or released from detention, making reunification more difficult. Government attorneys are currently working with the ACLU to track down and reunite parents and children.
Judge Sabraw also ordered that the government provide parents with the ability to contact their children by phone, if the parent was not already in contact with the child. Prior to this ruling, many detained parents were unable to contact their children and did not even know where their children were being held.
Despite the injunction, family reunification is ongoing and separated families still face several hurdles. According to recent estimates by Health and Human Services, somewhere under 3,000 children are still in custody and separated from their parents. Their previous estimates had put the number closer to 2,000.
The government has been plagued by difficulties in keeping track of the children or providing an accurate count of how many children they have separated from their parents, which has drawn criticism from child advocates and human rights organizations around the country.
While the injunction requires the government to reunite families and cease their separation policy, it has no effect on the government’s decision to detain or release parents. The Justice Department has indicated that it intends to keep parents in detention not only throughout their criminal proceedings but for the entire pendency of their asylum cases, which could take months. Holding children in detention for such a lengthy period of time, however, may contravene current law.
The Trump administration had previously justified its family separation policy as necessary under the 1997 Flores v. Reno settlement, which limited the amount of time children could be kept in immigration detention to 20 days. Department of Justice attorneys have argued that under Sabraw’s ruling, the Flores settlement should be scrapped, so that children can be indefinitely detained with their parents.
However, on July 9, 2018, District Court Judge Dolly Gee disagreed, leaving Flores intact and stating that “absolutely nothing prevents (the Trump administration) from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion.” How the Trump administration will continue detaining parents with their children pursuant to the Flores settlement remains to be seen. However, the administration has given no indication that it plans to cease its blanket detention policy.
Questions have also arisen over the government’s treatment of detained parents following Judge Sabraw’s orders. In particular, ICE has instituted a new policy forcing parents with final orders of removal to choose between two options: leave the country with their children or leave without them, leaving them in the U.S. to pursue their own relief. A form for this has allegedly been provided to parents who have pending asylum cases or who have passed their credible fear interviews, in contravention to U.S. asylum law. Some parents who do not even have a final order of removal are also being faced with this stark choice. The ACLU and Southern Poverty Law Center have both protested the use of this form.
While Judge Sabraw’s preliminary injunction has ordered the government to end family separation, the process is still in its early stages. Many families are still separated and reunification remains difficult. It remains to be seen how Trump’s zero-tolerance policy will play out in the future against increasing legal challenges.
Effective Date: June 26, 2018