More Than 1,000 Families Have Been Separated at the Border, Despite Court Order

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Sindy Ortiz Flores hugs her toddler for the first time in more than a month at San Francisco International Airport on Jan. 29, 2019, as cameras surround them. The baby, Grethshell Juliet, spent a month under government custody, after immigration authorities separated her from her father at the border. (Farida Jhabvala Romero/KQED)

A federal judge in San Diego on Monday ordered the Trump administration to provide all documentation relating to migrant family separations, a practice that has continued despite a June 2018 court order. More than 1,000 children have been separated from parents since then.

“It is beyond shocking that the Trump administration continues to take babies from their parents,” ACLU lawyer Lee Gelernt said in a statement. Gelernt is representing migrant parents, whose children were forcibly taken away by border officials, in a class-action lawsuit. “The administration cannot simply ignore the nationwide injunction over minor infractions.”

During a status conference on Friday, lawyers representing the federal government argued that the original injunction allows them to separate parents from their children if the parents are considered "unfit" or "a danger to the child."

But in court, Gelernt questioned if the government's motivation for separation was truly for reasons of safety.

"The government is more than happy to take these parents, that they deem a danger to their child, and remove them together. So they're more than happy to put them together when it means getting rid of them," Gelernt said.

The ACLU is asking that the judge reassess the original injunction to more explicitly address or provide guidelines for when children can be taken away from parents with a criminal history.

The ACLU is also asking that the government provide plaintiffs with lists of separated children on a weekly basis. In a joint status report to the judge earlier this month, the ACLU said it has been provided “one updated list tracking continuing separation of families” on Aug. 20. But plaintiffs' lawyers said the information was a month old, making it difficult to begin the process of finding and potentially reuniting the children with their parents.

But Justice Department lawyer Sarah Fabian said providing the lists each week would not be "feasible" due to the intensive back-and-forth and crosschecking required between different federal agencies.

While Judge Dana Sabraw did not make a decision during the hearing on Friday, he said he hoped to rule on the continued separations soon. And he offered this observation.

"If you have, for example, a father who has an assault with a deadly weapon in California, beat another man nearly to death and is sentenced to federal prison — that man might be the most loving, protective father and absolutely no danger to his child," Sabraw said.

Five asylum-seeking mothers also separately filed suit last week against the Trump administration’s family separation policy, seeking damages for cruel treatment and agony.

Back in July, the ACLU filed a motion attesting that the federal government had separated more than 900 children from their parents at the border, despite the nationwide injunction issued by Judge Sabraw on June 26, 2018.

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That injunction prevents the government from separating children from their parents, “absent a determination that the parent is unfit or presents a danger to the child,” or if the parent “affirmatively, knowingly and voluntarily declines to be reunited with the child in DHS [Department of Homeland Security] custody.”

Last spring, Department of Homeland Security acting Secretary Kevin McAleenan said continuing separations are done only for the safety of the child and are based on "defined criteria" in keeping with Sabraw’s order. But ACLU attorneys say the government has taken children from their parents based on minor criminal convictions and unsubstantiated allegations of wrongdoing.

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At Friday’s hearing, the government told Sabraw that of the 2,814 separated children who were in government custody at the time of the June 2018 ruling, all but 27 have been discharged — either by being reunified with a parent or under other “appropriate circumstances” (including placement with sponsors if their parent is deemed not eligible for reunification, or if the child turned 18.)

The search for additional separated migrant kids is underway because in April Sabraw ordered an expansion of the class in the lawsuit, known as Ms. L v. ICE, to include parents who were separated from their children between July 1, 2017, and June 25, 2018. During that hearing, Sabraw told government officials he expected the updated list of children to be ready by Oct. 23.

Lawyers for the government told the court that at least 986 more children were taken from their parents in the year before Sabraw’s injunction. And federal officials are still combing through records that could identify as many as 2,000 more.

The judge ordered both parties to report back to him with the family separation documents on Oct. 16.

This post has been updated.