A Federal Order Demands Reunification for Separated Families. Will Trump Comply?

Though President Trump’s recent executive order called for an end to migrant family separations, it didn’t address what the administration plans to do about the more than 2,000 children who have already been taken from their parents as a result of the “zero tolerance” immigration policy enacted last month. The government has obfuscated when pressed on the issue, offering nothing more than vague assurances that officials are doing all they can. On Tuesday afternoon, a federal judge in San Diego quashed any doubt around when the administration will decide to start taking the issue seriously. If all goes according to plan, the family separation crisis could be over within a month.

Hours after the Supreme Court ruled to uphold the president’s travel ban, U.S. District Judge Dana M. Sabraw handed down an order forcing the Trump administration to reunite all separated families within 30 days. The order also holds that children under the age of five must be reunited with their parents within 14 days, and that all children must be allowed to speak with their parents within 10 days. The order also prevents the government from separating any additional families at the border.

“The facts set forth before the court portray reactive governance – responses to address a chaotic circumstance of the government’s own making,” wrote Sabraw, a George W. Bush appointee. “They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution. This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children.”

The ruling was the result of a class-action suit filed by the ACLU on behalf of a Congolese woman whose six-year-old daughter was taken from her and held in Chicago for almost five months, and a Brazilian woman who had been separated from her 14-year-old son for almost eight months. Lee Gelernt, the ACLU’s lead lawyer in the case, was pleased with the ruling. “This is an enormous win and will mean that this humanitarian crisis is coming to an end,” he said in a statement. “We hope the Trump administration will not think about appealing when the lives of these little children are at stake.”

Sabraw’s 24-page opinion was scathing. The judge offered several harsh criticisms of the administration’s handling of the situation, at one point outlining how the government is better able to track property than people. “The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property,” he wrote. “Certainly, that cannot satisfy the requirements of due process.” He called the government’s lack of coordination in handling families who have been separated a “startling reality.”

“The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as *property.*” pic.twitter.com/Pv9O8rZ7Rt

— Quinta Jurecic (@qjurecic) June 27, 2018

The ruling came at the end of another day filled with confusion over the government’s efforts to reunite children and parents separated under the “zero tolerance” policy the president instituted last month. During a media briefing Tuesday afternoon, the Department of Health and Human Services (HHS) said they still have 2,047 separated children in their custody, only six less than the number given on June 20th. Lisa Dejardins of PBS NewsHour reportedly asked the agency three times whether it was taking in new children that had been separated from their parents, but HHS refused to answer her. MSNBC’s Jacob Soboroff later reported that the agency told him they are still receiving kids that have been separated “when there is credible jeopardy, or criminality,” but questions still remain about the specifics of some of the statistics released, and what specific efforts the government is making to reunite the separated families.

Just before going on air with @Lawrence, @HHSGov got back to me to say they still *are* receiving newly-separated migrant kids.

This, after a completely bizarre press call earlier today when they ignored @LisaDNews asking this exact question three times. pic.twitter.com/XCB2ETkxAG

— Jacob Soboroff (@jacobsoboroff) June 27, 2018

Sabraw’s ruling Tuesday provides a much-needed legal check on the administration’s handling of the situation. Crucially, it prevents future family separations. (Trump’s executive order, as many noted, failed to ensure the practice would come to a permanent end.) The EO calls for families and children to be detained together, but for this to hold water the courts would need to amend a 1997 settlement that prevents the government from detaining children for more than 20 days. Such an amendment is unlikely, leading many to fear that the president could ultimately revert to separating families. “This order closes off that gaping hole in the EO,” immigration lawyer David Leopold tells Rolling Stone. “You cannot separate families, period.”

The ruling also forces the administration to ramp up efforts to reunite families that have already been separated. Though they’ve said they are doing all they can, if the figures provided by the HHS are correct, it seems that only 6 of over 2,000 children have been reunited with their parents in the week since Trump signed the executive order. “I don’t buy that they can’t reunite these kids with their parents quickly,” says Leopold. “This is the United States government, with unlimited resources. When they decide they want to do something, they can do it. We’re talking about a government that can move armies over oceans. I have a hard time believing they can’t reunite toddlers with their parents.”

If the administration isn’t able to comply with the timeline imposed by Sabraw, it could be held in contempt of court. Even if it attempts to move for a stay or appeal the ruling, Leopold says it’s unlikely that the 30-day deadline imposed Tuesday night will be affected. “From a political standpoint and a legal standpoint, they better get these families reunited,” says Leopold. “They better comply with due process.”

As we’ve seen, the Trump administration seems to respect due process only when it’s convenient. On Sunday, the president tweeted that there’s no need for it at the border. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” he wrote.

In the end, it’s impossible to predict how the administration will respond to Sabraw’s order, if it even responds at all. Considering the harshness of the rebuke, it isn’t hard to imagine the president dismissing it as biased. “This administration has brought us to the point where we read a scathing opinion like this and we ask ourselves if the administration is going to respect the rule of law,” says Leopold. “We don’t have an answer. That is a terrifying, terrifying reality to be in.”