Federal Judge Orders End of Family Separation, Reunification of Parents and Children Within 30 Days

U.S. District Judge Dana Sabraw has ordered the United States federal government to stop its torture (yes, torture, torture) of children at the southern border and reunite the immigrant families it has so cruelly separated. In response to a class-action lawsuit brought by the American Civil Liberties Union, Judge Sabraw has ordered that Immigration and Customs Enforcement no longer detain immigrants “without and apart from their minor children, absent a determination that the parent is unfit or presents a danger to the child.” The order gives ICE ten days to provide parents telephonic contact with their children and facilitate regular communication, fourteen days to return children younger than five years old to their families, and 30 days to return older children to their families. Finally, Judge Sabraw enjoins the federal government from deporting any more parents without their children (yes, we’ve done that).

The lawsuit was initially brought on behalf of two immigrants whose children were taken from them by ICE months before the current scandal erupted. One of those immigrants, a Catholic woman from the Democratic Republic of the Congo, entered the country legally with her six-year-old daughter at the San Ysidro Port of Entry seeking asylum from religious persecution:

They were initially detained together, but after a few days S.S. was “forcibly separated” from her mother. When S.S. was taken away from her mother, “she was screaming and crying, pleading with guards not to take her away from her mother.” (Am. Compl. ¶ 43.) Immigration officials claimed they had concerns whether Ms. L. was S.S.’s mother, despite Ms. L.’s protestations to the contrary and S.S.’s behavior. So Ms. L. was placed in immigration custody and scheduled for expedited removal, thus rendering S.S. an “unaccompanied minor” under the Trafficking Victims Protection and Reauthorization Act (“TVPRA”), Pub. L. No. 110-457 (Dec. 23, 2008), and subjecting her to the “care and custody” of the Office of Refugee Resettlement (“ORR”). 3 S.S. was placed in a facility in Chicago over a thousand miles away from her mother. Immigration officials later determined Ms. L. had a credible fear of persecution and placed her in removal proceedings, where she could pursue her asylum claim. During this period, Ms. L. was able to speak with her daughter only “approximately 6 times by phone, never by video.” (Am. Compl. ¶ 45.) Each time they spoke, S.S. “was crying and scared.” (Id. ¶ 43.) Ms. L. was “terrified that she would never see her daughter again.” (Id. ¶ 45.) After the present lawsuit was filed, Ms. L. was released from ICE detention into the community. The Court ordered the Government to take a DNA saliva sample (or swab), which confirmed that Ms. L. was the mother of S.S. Four days later, Ms. L. and S.S. were reunited after being separated for nearly five months [Judge Dana Sabraw, order, Ms. L et al. v. U.S. Immigration and Customs Enforcement et al., U.S. District Court, Southern District of California, 2018.06.26, pp. 4–5].

In March, the ACLU added as a plaintiff a Brazilian woman who entered the county illegally between ports of entry and requested asylum for herself and her fourteen-year-old son. The woman was arrested and detained; her son was sent to Chicago. The woman was convicted of misdemeanor illegal entry and served her 25-day sentence, but the government continued to separate her from her son for more than eight months, “despite the lack of any allegations or evidence that Ms. C. was unfit or otherwise presented a danger to her son.”

Along with the order to overcome its lack of planning and reunite families, Judge Sabraw also ruled that the plaintiffs are likely to prevail in their claim that the government’s family-separation policy “without a determination that the parent is unfit or presents a danger to the child violates the parents’ substantive due process rights to family integrity under the Fifth Amendment to the United States Constitution.” Even in the context of border security, “the right to family integrity still applies…,” and the government’s cruel treatment of legal asylum seekers violates American principles enshrined in law:

As set out in the Court’s prior Order, asylum seekers like Ms. L. and many other class members may be fleeing persecution and are entitled to careful consideration by government officials. Particularly so if they have a credible fear of persecution. We are a country of laws, and of compassion. We have plainly stated our intent to treat refugees with an ordered process, and benevolence, by codifying principles of asylum. See, e.g., The Refugee Act, PL 96-212, 94 Stat. 102 (1980). The Government’s treatment of Ms. L. and other similarly situated class members does not meet this standard, and it is unlikely to pass constitutional muster [Sabraw order, 2018.06.26, p. 14].

Judge Sabraw also finds our government violating due process by failing to put together any plan to reunite these families:

Second, the practice of separating these families was implemented without any effective system or procedure for (1) tracking the children after they were separated from their parents, (2) enabling communication between the parents and their children after separation, and (3) reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence. This is a startling reality. The government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainees’ release, at all levels—state and federal, citizen and alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (quoting Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18, (1981)) (stating it is “‘plain beyond the need for multiple citation’ that a natural parent’s ‘desire for and right to the companionship, care, custody, and management of his or her children’ is an interest far more precious than any property right.”) (internal quotation marks omitted) [Sabraw order, 2018.06.26, pp. 14–15].

Judge Sabraw wrote that separating children from parents does “irreparable harm” beyond the loss of Constitutional rights. Citing a brief submitted by the Children’s Defense Fund, Judge Sabraw says family separation “puts children at increased risk for both physical and mental illness,” “leaves children more vulnerable to exploitation and abuse,” and “creates toxic stress [see Tim Bjorkman’s policy paper on that topic] in children and adolescents that can profoundly impact their development.”

Belying Attorney General Jeff Sessions’ absurd and propagandistic claim that opponents of family separation are a “lunatic fringe” seeking open borders, Judge Sabraw says his injunction has zero impact on the government’s ability to secure the border:

The primary harm Defendants assert here is the possibility that an injunction would have a negative impact on their ability to enforce the criminal and immigration laws. However, the injunction here—preventing the separation of parents from their children and ordering the reunification of parents and children that have been separated—would do nothing of the sort. The Government would remain free to enforce its criminal and immigration laws, and to exercise its discretion in matters of release and detention consistent with law…. It would just have to do so in a way that preserves the class members’ constitutional rights to family association and integrity. See Rodriguez, 715 F.3d at 1146 (“While ICE is entitled to carry out its duty to enforce the mandates of Congress, it must do so in a manner consistent with our constitutional values.”) [Sabraw order, 2018.06.26, pp. 20–21].

Judge Sabraw says Donald Trump’s executive order last week, far from ending family separation, only corroborates the plaintiffs’ case. The executive order and other government documents show “reactive governance—responses to address a chaotic circumstance of the Government’s own making. They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution.” This chaotic and inept fouling of due process justify “the extraordinary remedy of classwide preliminary injunction.”

Judge Sabraw’s order shows the vicious incompetence of the Trump Administration. The unconstitutional and conscience-shaking abuse of human rights committed by this President should be grounds for impeachment.