A federal judge has ordered the Trump administration to reunify families that have been separated by the administration’s “zero tolerance” prosecution policy — and soon.
Judge Dana M. Sabraw of the United States District Court for the Southern District of California granted a preliminary injunction late Tuesday night, ordering the federal government to reunite children under the age of 5 with their parents within 14 days, and all other children who’ve been separated from their parents within 30 days. The government said Tuesday there are 2,044 separated children still in federal custody.
Judge Sabraw also ordered the government to stop deporting parents without their children — something that has already happened to an unknown number of parents — unless the parent “affirmatively, knowingly, and voluntarily” agrees to be deported alone. He further ordered that detained parents must be allowed to speak to their children on the phone within 10 days, after multiple reports of parents not being able to make phone calls or locate the facilities where their children are being held.
Sabraw’s order came after the American Civil Liberties Union (ACLU) sued the Trump administration to try to speed up the process to reunify families and stop further separations. But Trump administration lawyers claimed the injunction could delay reunification even longer in a filing on Tuesday, and argued that President Donald Trump had solved the problem with his executive order ending separations last week.
The judge disagreed with the administration’s arguments, blaming the Trump administration for “a chaotic circumstance of the Government’s own making.”
“The unfortunate reality is that under the present system, migrant children are not accounted for with the same efficiency and accuracy as property,” Sabraw wrote.
The ACLU is arguing the Trump administration must prove it actually knows where parents and their children are, and provide a detailed plan to reunite them. They’ve asked the government give parents a way to contact their children within a week of the initial separation.
Lawyers for the ACLU say these time limits are crucial, since there is so much uncertainty around whether many families who have been separated by the “zero tolerance” prosecution policy will ever be reunited.
“We don’t believe the government is treating this as an urgent priority,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and one of the lead attorneys in the suit. “That’s unfortunate given it is babies and toddlers crying themselves to sleep at night.”
The latest request for an injunction is part of a class-action lawsuit the ACLU first filed in March, months before the Trump family separation policy went into effect. ACLU attorneys are representing two women seeking asylum whose children were separated from them when they were apprehended.
The Trump administration, in a response to the ACLU on Tuesday, argued that the proposed time limits would make family reunification slower and have the potential to endanger migrant family safety by detaining families together in government family residential centers.
“A court administered solution like the one proposed by Plaintiffs is likely to slow that process and cause confusion, rather than speed the process of reunifying families in a safe and efficient manner,” government lawyers wrote in their response to the lawsuit.
Missing from the Trump administration’s response is any details on how government officials are currently reunifying families, a very difficult process for undocumented immigrants that can take months or longer.
“I think they don’t have a plan, and that’s why we’re not seeing anything more detailed,” Gelernt told Vox.
After Trump ended family separation, reunification is proving very difficult
The US Departments of Homeland Security and Health and Human Services have said they have reunited about 538 unauthorized immigrant children with their families — out of a total of 2,300 children separated from their parents under the Trump administration’s “zero tolerance” immigration policy.
But legal and advocacy groups on the ground in Texas say that number is difficult to verify. For instance, the Texas Civil Rights Project, whose attorneys represent close to 400 unauthorized immigrant families, has counted only four reunifications.
Regarding the more than 500 families the Trump administration has claimed to have reunified, the Texas Civil Rights Project said in a statement, “We do not have confirmation of these and have received conflicting reports regarding reunification.”
Immigration attorneys and advocates on the ground in Texas are suspicious of the administration’s numbers, given its shifting answers.
“On the ground, no one knows what’s going on,” Gelernt said.
Even if the government has reunited more than 500 kids with their families, it’s likely because these individuals were recently detained — and therefore the parents and children were being held in close proximity while the parents were taken to court. In other words, the kids hadn’t yet been taken into custody by the Office of Refugee Resettlement, which places separated minors in shelters and facilities all over the country.
But Trump’s family separation policy had been in effect for weeks — and the future of the kids who have been in federal custody longer and sent to federally run shelters all over the country is much less certain.
Advocates for the immigrants say a huge barrier to reunification is that parents and children are being detained by two completely different government agencies: Parents are held by Immigration and Customs Enforcement (or ICE, which is part of the Department of Homeland Security or DHS), and children by the Office of Refugee Resettlement (ORR, part of the Health and Human Services infrastructure known as HHS).
“These two different agencies have the pieces of families and no communications lines established at all,” said Bethany Carson, an immigration researcher and organizer for Grassroots Leadership who works with detained mothers in Texas. “There’s no process that’s being followed for reunifying these women with their kids.”
This order officially shifts the fight from family separation to family detention
After President Trump signed an executive order last week that opened the door for the government to stop separating families at the border by allowing them to stay in DHS custody while parents were prosecuted for illegal entry by the Department of Justice (DOJ) — and after, on Monday, Customs and Border Protection announced that it is no longer referring parents to the DOJ to prosecute at all — the national outrage over family separations shifted to focusing on the aftermath: when the families who had already been separated would be reunited.
Judge Sabraw’s order looks like it provides an answer to that question. But there is another question that is still unresolved, and that Judge Sabraw’s ruling only makes more urgent: What is the federal government going to do with families who come to the United States without papers instead of separating them — or, thanks to this order, once it’s reunited them in the United States?
Trump’s executive order instructed the government to find a lot more space, including on military bases, for family immigration detention, keeping families together in conditions even more jail-like than those in which children are kept alone by ORR. Plans for spaces to house thousands of families appear to be moving forward, but they don’t seem to be ready immediately. The three existing family detention centers are close to capacity already. So it’s not clear where the government can keep the 2,000-plus families it’s been ordered to reunite under this order.
Furthermore, by the time those facilities are ready, the families being detained may be legally barred from being housed in them.
Under a 2015 interpretation of the 1997 Flores agreement, the federal government is obligated to release any child from custody after about 20 days — even if the child is in custody with her parents. So the government is creating space for families that it legally still isn’t able to use. And a child detained with her parents on June 21, the day after Trump signed the executive order, legally can’t be kept in custody past July 11.
The Trump administration is fighting hard against the restraints of the Flores agreement. It has asked the judge who made the 2015 ruling to reverse it — something she is unlikely to do.
The administration has also asked Congress to pass a law that would override the Flores agreement by specifying that families can be kept in ICE detention facilities just like adults can. But Democrats and Republicans disagree on whether indefinite detention of families is acceptable. The logjam isn’t likely to get resolved this week, legislators say — and next week is July 4. Even an uncharacteristically fast response from this Congress won’t get a bill passed before the Trump administration starts running into the 20-day limit.
After the reunification ruling, the Trump administration can’t threaten to start separating families again if it doesn’t get its way on indefinite family detention.
So what will it do instead? Is it simply going to release families together who are waiting for an asylum hearing — the very practice of “catch-and-release” that the Trump administration designed its “zero tolerance” prosecution policy to avoid? Or is it going to use one of the alternatives to detention that the federal government has available for immigrants — everything from ankle-bracelet monitoring to sophisticated case-management systems — and thus acknowledge that, despite what it’s told Congress and the public, there are more options for migrant families than separation or indefinite detention?
Those questions were looming for the administration before this ruling. But Judge Sabraw just made them a matter of national urgency.