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Court ruling: Trump administration must take responsibility for all children it separated

The lawsuit over family separation grows to encompass up to “thousands” more families separated in 2017 and 2018.

This Guatemalan woman and her child were reunited after separation at the border in summer 2018 thanks to a court order. But that order didn’t apply to children who had already left government custody and were placed with other relatives or sponsors. A new ruling from Judge Dana Sabraw changes that.
Joe Raedle/Getty Images

A federal judge has declared that the Trump administration is legally responsible for all children who were separated from their parents at the US-Mexico border and placed with relatives or other sponsors after July 1, 2017 — which could amount to “thousands” beyond the 2,800 separations already acknowledged as a result of the Trump administration’s “zero tolerance” policy of 2017 and 2018.

The order, from Judge Dana Sabraw of the Southern District of California, comes as part of the lawsuit that forced the administration to reunify thousands of separated families in the summer of 2018. That order, however, only applied to reuniting children who were in the custody of the federal government as “unaccompanied minors” at that time.

Sabraw is now expanding the lawsuit to cover children who had already left government custody and been placed in the care of other relatives or sponsors before the reunification order came down.

An inspector general report published in January by the Department of Health and Human Services — which is responsible for the care of unaccompanied minors — estimated that there could be many more such children than the government had acknowledged or that the American Civil Liberties Union, which is leading the lawsuit against the government, had thought.

“The hallmark of a civilized society is measured by how it treats its people and those within its borders,” Sabraw wrote in the Friday night ruling. “That [the Trump administration] may have to change course and undertake additional effort to address these issues does not render modification of the class definition unfair; it only serves to underscore the unquestionable importance of the effort and why it is necessary (and worthwhile).”

The order doesn’t force the government to reunify these families — it just declares that their fate is legally now part of this lawsuit, and opens the door to the government and the ACLU to propose specific next steps. In particular, Sabraw and the ACLU (following the lead of the inspector general report) have called for an “accounting” that identifies all separated families.

The new ruling could force the government to answer the question of exactly how many families were separated as a result of the administration’s policies — or at least test the administration’s claim that because there was no standard way to keep records on separated families until thousands of them had already been separated, a complete accounting of family separations will be impossible.

Why “thousands” of separated families may have been left out of the lawsuit and reunification efforts — until now

When a child arrives at the US-Mexico border without papers and without a parent or guardian, he’s quickly referred to HHS as an “unaccompanied alien child.” The department’s job is to keep children in a more supportive environment than immigration detention, and to find, as quickly as possible, the closest relative living in the US who will be able to take them in while their immigration cases are pending.

Because children can’t be held in immigration detention alone, that’s also what happens to any child separated from her parents at the border.

Border separations for specific reasons — for example, if the parent had a serious criminal history — happened before Trump got into office. But the Trump administration, from its earliest days, contemplated broadening the practice by criminally prosecuting parents en masse for the misdemeanor of illegal entry. The family would be separated for the parent to go to criminal custody (briefly) before trial, and the child would be sent to HHS.

Evidence of increased family separations started surfacing in late 2017; Lomi Kriel of the Houston Chronicle reported on “zero tolerance” prosecutions near El Paso, Texas, in what was later revealed to be a Trump-run pilot program. That pilot separated an unknown number of children. Administration officials told the New York Times that 700 children were separated from parents between October 2017 and April 2018.

All of this was known to the public even before the Trump administration ramped up “zero tolerance” along the US-Mexico border, and ultimately attracted nationwide outrage for the practice in June 2018.

On June 20, President Trump signed an executive order to stop separating parents for prosecution; a week later, Judge Sabraw ordered the administration to reunite families in its custody. At that point, though, there wasn’t any indication that a large number of separated children had already left the government’s custody by being placed with sponsors.

So while it was known that the government wasn’t reuniting every parent and child it had separated — and even that the government hadn’t accounted for every separated family — it wasn’t known just how far off the mark they were.

The January inspector general report raised the possibility that there could be “thousands” more separated children who’d left the government’s custody before the reunification order. It’s not clear where that estimate came from — it appears to have come from contractors working with unaccompanied-child shelters, and it’s not clear whether the contractors formally estimated the number or were speaking off the cuff.

In a hearing before Sabraw, the administration claimed it hasn’t been made aware of any specific children who were separated and placed with sponsors before the reunification order. (During and after the push to reunify families, however, the ACLU identified nine parents whose children had already been placed and who were about to be deported alone; the government agreed to individually delay those deportations.)

But the possibility of “thousands” more separations raised national alarm — and gave the ACLU and other advocacy groups another opportunity to try to force the government to account for the full scale of family separation, from June 2017 (when the El Paso pilot started) to the day before the reunification order a year later.

The Trump administration may not have to reunite families. But it says even identifying them will be too hard.

Judge Sabraw’s new order does not require the government to reunite all the separated families it uncovers. There’s a good reason for that, both legally — the ruling dealt only with the question of which families fall under the court’s purview, not what the “relief” for them should be — and as a matter of policy.

The children who were placed with sponsors before June 2018 generally were placed with relatives. Some of those relatives may have been fairly distant, or people they hadn’t seen in several years — in the case of a family profiled by the Houston Chronicle, a 5-year-old girl separated from her mother was reunited with the father she barely knew. But it’s likely that some children were able to get back in touch with their parents, and some parents were able to decide whether they wanted the children sent back to reunite with them or for the child to stay in the US without them — the exact same choice the government gave to reunited families.

Furthermore, a lot of sponsors are themselves unauthorized immigrants, or live in communities with them, and aren’t necessarily likely to answer the government’s calls. (This was a known problem in keeping track of released children even before the family separation crisis.) Having the government responsible for tracking down those families, much less telling immigration agents to take children from sponsors and reunite them with parents, could pile trauma upon trauma.

Sabraw seems to be leaning toward a different solution: directing the government to simply identify every child who was separated from their parent since June 2017 and give that information to the court and the ACLU, which can then be in touch with parents and figure out whether there’s something more the court should do.

The Trump administration has argued forcefully that this record-keeping task could take months; a court declaration estimated that it would take 100 staffers more than a year to manually go through the files of all 47,000-plus children who passed through HHS custody from June 2017 to June 2018 and see if anything in the file indicates a separation.

One of the biggest problems with the family separation system was that when children were sent to HHS by border agents, their files didn’t consistently note which of them had arrived without parents and which had been separated. (The data field that indicated a family had been apprehended together was automatically overridden when the family was separated and the child sent to HHS.) A data field was finally added in June 2018, but that, by definition, doesn’t help kids who were placed with sponsors before then.

Advocates argue that if DHS is willing to work with HHS, it can cross-reference other databases to identify likely separated families. But it’s still not clear how long the process would take.

Indeed, the government is so resistant to taking on responsibility for separated children who have left its custody that it’s threatening to appeal Sabraw’s order — something it didn’t do with the original order to reunify families.

While the Trump administration and West Coast judges have had an antagonistic relationship when it comes to every other aspect of immigration policy, the family-separation lawsuit has been largely cooperative. But the administration is balking at the idea that it owes the same obligation to children who had already been placed with sponsors as it did to those still in its care.

To Sabraw, that is morally unconscionable. “It is important to recognize that we are talking about human beings,” he said at a hearing in February, “that every person needs to be accounted for.”

Given the difficulty, it’s not clear that the government would be able to make a full accounting no matter how hard it tried. And many of the administration’s critics, who have been demanding reunification of all separated families, may not feel an accounting is enough. But the new order is an effort to force the government to at least officially acknowledge responsibility not just for the parents and children it held in custody when it was ordered to stop family separations, but for the families it separated as a matter of standard practice for coming to the US without papers. In other words, the administration is being asked to assume responsibility for family separation itself.

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