Update, 6:40 p.m. Tuesday:
A San Diego-based federal judge on Tuesday commended efforts by multiple government agencies to reunite more than 1,600 migrant children separated from their parents by the court's Thursday deadline.
But Judge Dana Sabraw criticized the Trump administration policy that caused the separations in the first place, leading to what appears to be more than 400 parents being deported without their children and other parents unaccounted for somewhere in the U.S.
Sabraw ordered the government to provide three lists to plaintiffs — represented by the ACLU — by Wednesday: one of parents who agreed to be deported without their children, one of those who have already been deported and a third list of those who have been released from immigration custody in the U.S.
"This really should be a transparent process," Sabraw said during a status conference on the case Tuesday. "Some of this information is unpleasant. It’s the reality of the case. It’s the reality of a policy that was in place that resulted in large numbers of families being separated without forethought about reunification and keeping track of people. And that’s the fallout we’re seeing here."
He went on to say a "troubling reality" of the case is a "large number of parents who are unaccounted for or who have been removed without their child."
That includes parents related to 463 children who appear to have already been deported and another set of parents who the government lost track of because they're in state-level criminal custody, according to a status report filed Monday and discussions at the hearing.
U.S. Department of Justice attorney Sarah Fabian said 85 people had signed a notice waiving reunification with their child, a waiver the ACLU is attempting to revisit.
ACLU attorney Lee Gelernt asked the court for permission to file sworn statements from people describing a chaotic process where parents are not informed of their rights and are not given adequate time to discuss their cases with attorneys and their children.
"They say that the parents have no idea what’s happening, that they’ve signed these forms," he said in court. "There's a vast difference between what may have been directed from headquarters and what's happening on the ground."
"Things are an absolute mess on the ground," he said, describing the extent of some parents' discussions with their children to have been "maybe one short phone call where the child's crying."
The ACLU is asking the court to require immigration authorities to wait one week from the date parents are reunified with their children before deporting the adults. At least 900 parents either already reunited or awaiting reunification are facing final deportation orders.
Deputy Assistant Attorney General Scott Stewart said in court that "the government would also take issue with the suggestion that things are a mess on the ground."
He said the government had attempted, in good faith, to negotiate outside of court an appropriate timeline for deportations with the ACLU attorneys. But after those negotiations broke down Monday, the government is arguing that Sabraw lacks authority to order the delay.
"The government has a pretty strong jurisdictional objection to the issue here," Stewart said. "This case is not a challenge to the government's discretionary removal authority."
Sabraw issued a temporary restraining order on removals of parents in the case but has yet to rule on the broader motion for a stay. He's expected to take that up again on Friday.
Attorneys representing the Trump administration and the ACLU are expected to spar in a San Diego federal court Tuesday over how much time separated migrant families should have to consider asylum or other relief before accepting deportation.
The ACLU brought the federal lawsuit that halted the Trump administration's practice of separating children from their parents while bringing criminal charges against immigrants taken into custody at the border. Judge Dana Sabraw ordered the government last month to reunite children with their parents by Thursday, a complicated task that involves more than 2,500 minors and an undisclosed number of adults linked to them.
Last week, Sabraw temporarily halted deportations of parents after the ACLU asked him to stay removals for seven days after reunification. The Trump administration is arguing that 48 hours is sufficient for parents to decide whether they want to be reunited and deported with their children or to leave them behind in the U.S.
"This court should deny Plaintiffs' motion to stay class members' removals," a government filing Tuesday opposing the weeklong timeline says. "Plaintiffs and their children have already had ample opportunity to communicate and discuss their options. For many of them, any further delay only serves to prolong detention following reunification."
In asking for the weeklong window, the ACLU cited "persistent and increasing rumors — which Defendants have refused to deny — that mass deportations may be carried out imminently and immediately upon reunification."
"A one-week stay is a reasonable and appropriate remedy to ensure that the unimaginable trauma these families have suffered does not turn even worse because parents made an uninformed decision about the fate of their child," the ACLU's filing says.
The ACLU's lead attorney in the case, Lee Gelernt, called the government's suggestion that people had enough time to understand their rights "flatly wrong" in an interview Tuesday morning.
"What we are seeing on the ground is that parents are emotionally distraught and confused about their rights," he said. "Most importantly, they have not had time to discuss these issues with their children."
U.S. Immigration and Customs Enforcement Acting Assistant Director David Jennings said in a declaration filed Tuesday that ICE has facilitated communication between parents and children since late June, with phone calls and video conferencing between adult ICE detainees and children in custody of the U.S. Department of Health and Human Services Office of Refugee Resettlement.
But the government is not guaranteeing that families would be physically in the same space to discuss how to proceed.
"They are faced with momentous decisions whether to leave their child behind, whether to continue fighting as a family," Gelernt said. "They need time together."
Prolonging the time families are given to consult with attorneys and each other to decide if and how to fight for asylum or other claims that would allow them to stay in the U.S. would be costly and inefficient, Jennings wrote in his declaration. He noted that it costs the government $319 per family member per day, and ICE currently has space for between 2,500 and 2,700 family members in three detention centers.
The government said 900 adults had been ordered deported in a status report filed Monday, and 463 cases involved adults who are no longer in the U.S.
Gelernt said those adults may have been deported without their children, but the ACLU is seeking clarification on that and other numbers reported by the government.
"We need more information about the individuals they’re unilaterally declaring to be ineligible under the court’s deadlines for reunification," Gelernt said, referring to a group of 64 adults the government said have a "prohibitive criminal record" or were otherwise "deemed ineligible" for reunification.
The number of children so far reunited with their parents is also unclear because the latest update groups the reunifications to date with "other appropriate discharges" by the Office of Refugee Resettlement — for a total of 1,187.
"We don't know what that means," Gelernt said.