Family Separation in Court: What You Need to Know

On June 26, a federal judge issued a national injunction in the ACLU’s class action lawsuit against the Trump administration’s policy of separating children and parents at the border. He ordered the government to reunite all children under five with their parents by Tuesday, July 10, and all remaining children by July 26. 

Since then, the administration has been scrambling to create a plan and process to meet the court’s deadlines and reunite thousands of families. 

Here are the four things you need to know about where the reunification process stands: 

The judge did not extend deadlines for the government to reunite families, saying “These are firm deadlines. They’re not aspirational goals."

At the July 10 status conference, the court said that the government should reunite 63 children under the age of five on Tuesday. For each child whom the government does not reunite by Tuesday, the judge has ordered specific articulations of why. He invited the ACLU to respond as to whether it amounts to non-compliance on the government’s part and what relief we’re seeking as a result. At the status conference, the government said they were likely to reunite 34 of the children by the end of the day.

Children who are successfully reunited by Tuesday will first be transferred from the Office of Refugee Resettlement into the custody of Immigration and Customs Enforcement, where their parents are being held. ICE will then release parent and child together. The families will not be held in detention together.

While the locations will not be publicly disclosed, the ACLU has asked the court to require the government to notify us, so that we can coordinate with local non-governmental organizations to ensure that they are onsite to meet families and assist with shelter, transportation, and other needs.

The government attempted to shirk responsibility for reuniting children with parents who had already been deported, but the court said no. 

On July 6, in a brazen attempt to shrink the number of children the government is obligated to reunite, the Justice Department attorney argued that parents whose children had been taken away but who had already been deported should not fall into the class of people affected by the lawsuit.

Lee Gelernt, the ACLU attorney arguing the family separation class action, pushed back, pointing out that, “Those are the most acute situations, the most horrible situations, because then you have a parent far away wondering … what is happening to my child in a foreign country?”

The judge agreed, making it clear that deported parents are a part of the class and the government has the obligation to reunite them with their children.

However, the judge did stress that if the government does identify some children who technically fall outside the class, it should still “try to reunite, because that’s the spirit of the injunctive relief and what everyone is trying to do.”

The government’s attempt to abdicate responsibility for the reunion of toddler-age children with parents who they have deported to foreign countries remains deeply disturbing. In fact, it’s all the more troubling considering reports of a form that ICE is distributing that misleadingly presents parents with active asylum claims with two choices: Leave the country with their child, or leave the country without their child. It did not include the option of being reunited with their children and pursuing their asylum claims.

We asked that the court require the goverment to provide an alternative notice for class members, a request the judge granted. It clearly advises parents: “You do NOT need to agree to removal from the United States in order to be reunified with your child. You may continue to fight your case. You should NOT be pressured to agree to removal in order to be reunified with your child.”

The government must post the notice in ICE detention facilities starting today.

The ACLU is actively working with the government to locate the parents who have already been deported — a problem the administration would never have required help with had they not ripped families apart in the first place.

The court said the government must use a streamlined process to reunite children.

While the government is now attempting to comply with the court orders, it’s failing because of real logistical problems, like missing records or parents whose locations it failed to track. But it is also stalling by insisting on sticking to status quo agency procedures in the face of extraordinarily unique circumstances.

Ordinarily, the Office of Refugee Resettlement would conduct a background check, perform a home visit, and fingerprint the people to whom it was releasing a child. That’s because the agency is dealing with kids who came to the United States unaccompanied by a parent. But these procedures are not necessary in cases where the government took a child from a parent, rendering them unaccompanied.

The government has also argued that it needs to administer DNA tests to every parent and child, which will cause unnecessary delays in reunification and raises serious privacy concerns.

The judge made clear on Tuesday that business as usual is not acceptable, that parents are not “applying” for permission to get their children, but rather that the government has an “affirmative obligation” to reunite. Unless the parent is unfit or presents a danger to the child, the child needs to be reunified with the parent.

We asked the court to restrict the government’s use of DNA testing to limited cases where parentage cannot be verified in another way, meaning that there is no other reliable documentary, testimonial, or other evidence of parentage.

It is inherently coercive for the government to require parents to submit to DNA testing to get back the children that were unlawfully taken from them. Parents should not have to sacrifice their privacy rights and face the risk of having their DNA information collected in a government database to be reunified with their children.

The judge agreed, finding that DNA tests should only be performed when there is a genuine reason to doubt parentage or when the government has a legitimate concern that it will not otherwise meet the deadline to reunify. Further, Judge Sabraw found that should DNA tests be necessary, the samples must be destroyed after being used to match up parents and children and can't be put into a government database.

The government said that all children reunited with parents by the Tuesday deadline would be released from custody, but it raised the specter of family detention in the future.

At the close of the hearing, a Justice Department attorney asked Judge Sabraw to clarify whether the national injunction requires the release of parents from detention, or only the reunion of parent and child.

This question comes on the heels of a separate decision on July 9 from Judge Dolly M. Gee of the Federal District Court in Los Angeles, declining to amend a decades-old court agreement (known as the Flores settlement) which established protections for children to prevent their indefinite detention in unlicensed facilities.

Ending family separation doesn’t require family prisons, but this is not the first time the Trump administration has peddled the false equivalency. Alternatives to family detention not only exist, they are more humane and far less costly.

Judge Sabraw requested further briefing on the matter. 

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Anonymous

Does that include the 22 parents being held because they had committed serious crimes, the parent whose kid lodged a credible complaint of child abuse, and the 5 adults whose DNA doesn't match the children they were trafficking?

Anonymous

With tremendous gratitude, I am pleased to support ACLU monthly for the important work it does, especially when the lives of innocent children are at stake.
The Federal Government, Trump's Zero Tolerance policy cause unnecessary trauma to immigrant families. There are child abuse allegations, certainly violations of US Constitutional law, and incompetence in DHS and HHS, DOJ. There must be criminal charges. Families requiring medical and mental health care and transportation must receive it at the Fed Gov expense. We cannot close a blind eye.

Fr. Dennis Kriz, OSM

Please insist on a CASE BY CASE _public_ accounting of the children who continue to be separated from their parents / families as a result of this clearly not-thought-through "zero tolerance" policy. The children's names could be anonymized or even simply numbered. But the Public simply deserves to know what for WHAT SPECIFIC REASONS these children continue to be detained. Okay, one of the parents had a previous criminal record? Okay, what exactly does that mean? Is being caught at the border previously being conflated with larceny for instance? The parent was already deported. OMG where exactly did you send this kid's parent? What kind of contact are you in with the local authorities there to get a hold of that parent to tell him / her that his / her kid is okay and you're getting ready to send the kid back? The parent is still in custody? For what? Was that parent simply applying for asylum? In the 1970s-80s there were HUNDREDS OF REFUGEES (BOAT PEOPLE) IN REFUGEE CAMPS ALL ACROSS SOUTH EAST ASIA. Asylum seekers were respected, protected, even if perhaps in camps, and didn't have their kids ripped away from them.

At the end of the day, the crimes being committed here are even bigger than us. Interpol warrants should be issued again ALL OF THEM -- President, Donald Trump, all three of the Secretaries of Justice, Homeland Security and Health and Human Services, the Press Secretary Sarah Huckabee Sanders, the head (or former head of ICE) ALL OF THEM -- for violations against article 9 of the 1989 UN Convention Protecting the Rights of the Child protecting children from arbitrary separation from their parents and now article 8 of the same convention (on behalf of the 46 children not yet released) protecting the child's right to retain his/her identity (if they are put up for adoption ... that really becomes child stealing).

These are crimes that if these officials hailed from other countries, they'd be certainly sent to the Hague for trial. I have no doubt if they were Serbs for instance that's what would happen to them. Trump, et al, don't deserve to be "special"

Anonymous

Divorce courts have separated AMERICAN fathers from their children for decades. Has the ACLU ever spoken up about THAT injustice?

Jean Ruecker

And, in every instance, the father had the option of fighting that separation with legal assistance and proof of parental care. These children have not had that option, but maybe an immigrant child doesn't, to you, deserve our protection.

nwilliams

More needs to be done:
5 to 10 year olds are also young children and need to be prioritized.
Some families are getting no protection, like 3 year old Sofi, featured on PBS, who entered legally but was taken away from her grandmother, not a "parent" who would qualify for help.

nwilliams

The rights of vulnerable young children who have aready suffered asylum qualifying horrors must be prioritized. To then rip them from their families and isolate them from everyone they know is inhumane and a human rights violation.

Gramdmothers United!

Help Sofi !!!
A 3 year old girl, ripped from her legally-arriving guardian grandmother's arms, and now jailed in "isolated from family solitary" for over a month. See PBS story, heartbreaking!

Gramdmothers United!

Help Sofi !!!
A 3 year old girl, ripped from her legally-arriving guardian grandmother's arms, and now jailed in "isolated from family solitary" for over a month. See PBS story, heartbreaking!

Anonymous

I'll bet if the judge started jailing some ICE chain of command for violating a court order, the pace would pick up quite a bit....

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