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Trump’s about to miss Tuesday’s court-ordered deadline to reunite young migrant kids with their parents

Twenty or more kids under 5 will remain separated. But the court will likely let the administration off the hook for now.

This Guatemalan mother was reunited with her children. More than 50 more families are due to be reunited by a court-imposed deadline Tuesday; but a few dozen children under 5 will likely remain separated after the deadline.
Don Emmert/AFP via Getty Images

The federal government is definitely not going to meet Tuesday’s deadline, imposed by federal judge Dana Sabraw, to reunite all of the more than 100 children under the age of 5 separated from their parents at the US-Mexico border under President Donald Trump’s “zero tolerance” prosecution policy.

But it’s almost certainly not going to matter.

In a joint filing Tuesday, the Trump administration and the ACLU attested that at least 20 children who are supposed to be reunited with their families under the court order will not be reunited in time due to logistical obstacles. And depending on verification processes, that number could be as high as 37. (Another 24 children, the government says, can’t be safely reunited with their parents due to safety concerns or because the parent is being held in criminal jail.)

Judge Sabraw has all but promised the government that he’ll extend the deadline Tuesday for the few dozen children remaining — as the government works with the ACLU to try to figure out what a reasonable timetable is to vet parents who have been released from Immigration and Customs Enforcement (ICE) detention and locate those who’ve already been deported.

With the deadline looming, the government and the plaintiffs in the lawsuit over family separation (led by the ACLU) are working overtime to hash out a plan to identify and reunite as many families as possible in time. They’re collaborating to share information and track down children and parents — meaning that the ACLU is more interested, right now, in setting a deadline the government can meet than slamming it for missing one.

Unsurprisingly, the ACLU has a more aggressive idea of what’s possible than the government does. But the disagreement between the two, at this point, is narrow enough that the judge (and maybe even the ACLU) are reassured the government’s making a good-faith effort to comply with the reunification order.

As few as 38 kids might be reunited with parents in time for the deadline

The breakdown of how many children under five are in HHS custody after being separated from their parents — and, therefore, subject to Tuesday’s deadline — has changed on a daily basis as the deadline approaches. Here’s the most recent breakdown, via Tuesday’s filing from the ACLU and the DOJ.

34 will definitely be reunited with their parents Tuesday. The parents (having passed DNA verification) are currently in ICE custody; the children will be reunited with them there, and then, the government says, the parent and child will likely be released from custody together.

4 have already been released. Since the DOJ sent the ACLU a list of 102 children on Sunday night, it’s reunited 3 of them with parents in the US (though only 1 of those has been reunited with the parent who originally brought them to the US); another child has returned to their home country with an older sibling.

17 might not be reunited with their parents in time, because vetting is still ongoing. The DOJ says that it’s still verifying the identities of 16 parents, and will reunite them with their children as soon as that’s completed — which may not be today. Another parent might not be reunited with their child because DHS has concerns based on their background check — DHS will figure that out today.

10 can’t be reunited by the deadline because their parents are still in criminal custody. Eight parents are in federal criminal custody, and will be returned to ICE once their criminal cases have been completed. The other two had outstanding state warrants and are now in state custody — which means the federal government might not be notified before they are released from jail or prison.

16 won’t be released to their parents for safety reasons. The DOJ says that 14 parents have criminal histories that indicate that it wouldn’t be safe to release a child to them. Another two are temporarily in this category, but will be reunited as soon as the parent finds a safer place to live or gets over the communicable disease they’re currently infected with.

One child has not yet had a parent identified. The government says the parent’s location hasn’t been known for over a year, and that it’s not clear whether they were separated at the border or not.

12 will not be reunited by the deadline because their parents were already deported — either before the court order went into effect preventing further deportations of parents without their children; in violation of the court order; or with the parents knowingly agreeing to be deported without their children.

The government is providing the ACLU with information about when and to where the parent was deported (in the hopes that nonprofits will be able to locate the parent), and hoping to set up a system to ask deported parents if they want their children returned to them or if they want the kids to stay in the US and pursue their separate legal cases.

Eight parents have been released from custody and may not be vetted in time. This is the biggest sticking point in judging whether the government is complying with the judge’s reunification order in good faith. The government says that these parents are currently being reviewed under the standard process for vetting sponsors of “unaccompanied alien children” — which is fairly demanding. The other five presumably haven’t been located yet. The ACLU is pushing the government to streamline its vetting process.

What happens next

The court case is expected to proceed right up until the deadline — there’s going to be another hearing at 11am Pacific, and Judge Sabraw is expected to issue an updated order — including an extended deadline — after that.

In theory, if negotiations break down, the government could be accused of violating the court order by missing the deadline for reunification of all kids under 5 — putting it at risk of being found in contempt of court. But in practice, judges almost always give government agencies multiple chances to comply with court orders by amending them before they charge anyone with contempt.

Even if the judge were to go so far as to charge the government with contempt, it would require a separate court proceeding — and it’s not clear that a government agency can be fined for contempt. In other words, the government holds most of the cards.

Here are the outstanding issues:

How much vetting does a parent need? The government insists that it can’t speed up the vetting process before releasing a child to a parent without violating the Trafficking Victims Protection Reauthorization Act (which governs the treatment of children deemed “unaccompanied alien children”). The ACLU maintains that the government could streamline the process without issue — which would allow the government to reunite at least four more children with parents by tomorrow. The two sides are hoping to get the judge to rule on this question Monday night.

What criminal convictions disqualify a parent from reunification? The ACLU is asking the judge to clarify what specific criminal convictions might deem a parent unsuitable to be reunited with his child. It’s not clear what standards the government is using, and some past crimes (like petty theft) might not be relevant to the ability to take care of a child.

When will the public know how many families have been reunified? The judge in the case wants a status update by Tuesday night; the government wants to wait until Wednesday morning.

What about the children over 5 — as many as 2,900 of them? All of this, of course, is specific to the July 10 deadline for children under 5. But there could be as many as 2,900 children 5 and over who were also separated, and the government is under an order to reunite them with parents by July 27.

Given the difficulty reuniting 100 families in two weeks, it’s not at all clear that the government will be able to reunite 2,900 more in another two weeks. And while it looks like the reunification process is moving much faster now than it was a week ago — and that the ACLU and the government appear to be working together to some extent to untangle the mess — it’s not clear whether the ACLU is going to be as conciliatory toward the government after the first deadline is resolved.

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