Judge Says Families Separated in 2017 Suffered Same Injustice as More Recent Cases

The U.S. Department of Homeland Security may soon have to identify, and possibly reunite, potentially thousands more families separated at the border under the Trump administration’s zero tolerance policy.

At a hearing in San Diego on Thursday, U.S. District Judge Dana Sabraw told government attorneys that a newly reported group of possibly thousands of migrant children taken from their parents in 2017 suffered the same alleged wrong as thousands of other children covered by a class-action lawsuit in his court (Ms. L v. ICE).

“When there’s an allegation of wrong on this scale, one of the most fundamental obligations of law is to determine the scope of the wrong,” Sabraw said. “It is important to recognize we are talking about human beings.”

Last June, Sabraw ordered the government to stop separating families at the border and to reunite any of the children still in U.S. custody with their parents.

U.S. officials identified all the separated children in the custody of the Office of Refugee Resettlement, a division of Health and Human Services responsible for the welfare of unaccompanied immigrant children in U.S. care, as of June 26, 2018, the date Sabraw issued his injunction against unlawful family separations.

In July 2018, ORR reported that there were 2,654 affected children. Officials have since revised the number to 2,816, according to a status report filed with the court this week.

The vast majority of the kids had been released to their parents or another close relative by January when a government watchdog reported that thousands more children may have been separated from their families.

A Jan. 11 report by the Inspector General for HHS found that thousands of additional children may have been taken from their parents at the border beginning in 2017, "before the accounting required by the court."

Attorneys with the American Civil Liberties Union asked Sabraw to clarify whether they should be included in the class-action lawsuit and entitled to relief.

Sabraw has not issued a ruling yet on the matter, but in the court hearing made it clear that the defining common denominator for class members is whether they were wrongfully separated, not whether the child was still in U.S. custody when the judge issued his June order.

Sabraw said that given the recent revelations by the Inspector General for HHS — as well as investigative reporting by news agencies — using June 26, 2018, as a cutoff date for families to be eligible seems “very arbitrary.”

"This would be a dramatic change in the case," U.S. attorney Scott Stewart told Sabraw, which would "blow the case into some other galaxy of a task."

Identifying and reuniting additional children with parents would be costly and time-consuming, he said, but it would also be a betrayal of the government's good-faith efforts to comply with the judge's injunction.

"The government, faced with a challenging preliminary injunction that we opposed vigorously, made the decision to work with the court, to work with the parties, to marshal extraordinary resources to address this difficult task of reunification," Stewart said. "I'm just not sure that we can keep going that way."

“Isn’t it important to the process to have an accounting," Sabraw asked, "of what happened, to whom, how many were involved, and where are they?”

Speaking after the hearing in Sabraw’s courtroom, ACLU attorney Lee Gelernt said the government should identify and help locate all the families.

“At the end of the day it’s about each individual kid and if there’s one kid out there looking for their parent, we have to find them,” Gelernt said.

Sabraw said he would issue a decision “very soon” on what to do about the additional family separations.

Long-Running Allegations of Unlawful Family Separation

The report by the Office of Inspector General was the first official confirmation of allegations by immigrant advocates of a spike in family separations dating back to the early days of the Trump administration.

In December 2017 a coalition of nonprofits who work with immigrants seeking asylum asked the Office for Civil Rights and Civil Liberties and the acting inspector general for DHS to investigate whether a policy existed.

A Dec. 11 joint complaint filed by several nonprofits that work with asylum-seekers said, "Our organizations have documented numerous instances of family separation in the last several months alone," and urged the watchdog organizations for DHS to stop it.

"DHS and its components have consistently demonstrated that they are unable to manage the separation of families in a legal and ethical manner," advocates warned, and lacked the ability to track such separations in a way "to facilitate location of, contact with or release and reunification with separated family members."