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Judge orders reunification of migrant families, hours after Health Secretary said he can’t

A judge's order forces Trump administration to confront alternatives to family detention.

(Photo by Sarah Silbiger/CQ Roll Call)
(Photo by Sarah Silbiger/CQ Roll Call)

Late Tuesday, a federal judge ordered the Trump administration to reunite migrant families it had separated as part of its “zero tolerance” policy, closing off a day of mixed signals from officials on if and when reunification would even occur.

San Diego district court judge Dana M. Sabraw barred the Department of Homeland Security (DHS) from separating any more migrant children from their parents, and requires federal officials to reunite families it had already separated. Children under five have to be reunited with their parents within 14 days and all others within 30 days. The ruling also requires officials to make sure parents can contact their kids within 10 days if they haven’t already been able to find them.

Until now, the Trump administration has done little to reunite families and has even promised to reunite parents with their kids only if they sign their own deportation orders.

Judge Sabraw said neither the Trump administration’s executive order aiming to end family separation nor guidance released by DHS  and HHS thereafter  comprehensively addresses reunification. This was even clearer given that there’s been no established procedure for reunification in place, he added, a fact he confirmed in a conference call on Friday with government counsel.

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He wrote in the order, “outside of deportation, the onus is on the parents,” who have to locate their children, taken into the custody of the Department of Health and Human Services (HHS), while they, themselves, are in criminal or immigration proceedings.

“[T]he government has no system in place to keep track of, provide effective communication with, and promptly produce alien children,” wrote Sabraw. “The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property.”

So now the question becomes: how will officials comply with the federal court’s order when some families are likely 2000 miles apart? Even Sabraw admitted there’s no efficient system in place to keep track of them.

The Trump administration had been systematically separating families as part of its “zero tolerancepolicy of criminally prosecuting asylum-seeking parents who come to the U.S. between official ports of entry.

Last week, federal authorities stopped charging migrant parents with misdemeanors, but there are still many families already separated. HHS said on Tuesday it had 2,047 separated minors in its facilitates — down six from last week. (It is unclear whether any of those six children were reunited with their parents.) The 500 kids who federal officials previously said were reunited with their families were never taken into the custody of the Office of Refugee Resettlement (an arm of HHS). That means there are still more than 2,000 kids separated from their families and being held in ORR facilities across the country.

HHS Secretary Alex Azar on Tuesday claimed he knew where every separated migrant child was, saying “I sat on the ORR portal, with just basic key strokes and within seconds could find any child in our care for any parent available.” But he also said he could only reunite children when they finish immigration proceedings and if HHS can verify they are in fact their parents, effectively having parents apply to become a sponsor.

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The other answer he gave was if Congress passed legislation overruling the Flores settlement agreement. Under Flores, kids cannot be held in immigration detention for longer than 20 days. If Congress was able to overturn the agreement, however, HHS would consider transferring kids from ORR to DHS where families with be held in detention, together, said HHS officials to reporters on Tuesday.

The court order complicates an ever-changing, complicated process of reunification because officials still don’t appear to have a concrete plan to reunify families (other than in instances to deport them) — never mind doing so within a months time.

The Trump administration is expected to appeal the ruling, but in the meantime, it’s unclear where families will go when they’re reunited, as it’s still illegal to detain children indefinitely. Asylum cases typically take much longer than 20 days, so now the administration needs to think about how to reunify families if Congress doesn’t take action.

It’s unclear whether the Trump administration will now pursue options like ankle-bracelets monitoring. Last year, officials ended the Family Case Management Program, which helped nearly 1,000 asylum seekers navigate the immigration court system and which advocates called a “humane and cost effective alternative to detention.” Police chiefs from across the U.S. on Wednesday also urged the White House to think of alternatives like this given that detaining families poses health risks to children and it’s costly. But first, officials need to reunite families and this process in and of itself will likely be cumbersome.

ThinkProgress reached out to HHS to see if and how officials will comply the court order and was told a statement would be coming later Wednesday.