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Trump admin admits it can’t reunite migrant families by court deadline, hours after it said it can

The administration has asked the court for more time to allow for family reunification.

U.S. Health and Human Services Secretary Alex Azar (R) delivers remarks about drug prices with President Donald Trump in the Rose Garden at the White House May 11, 2018 in Washington, DC. (CREDIT: Chip Somodevilla/Getty Images)
U.S. Health and Human Services Secretary Alex Azar (R) delivers remarks about drug prices with President Donald Trump in the Rose Garden at the White House May 11, 2018 in Washington, DC. (CREDIT: Chip Somodevilla/Getty Images)

A confident Health and Human Services (HHS) secretary Alex Azar told reporters Thursday afternoon that the federal government will reunite migrant families it had separated by court-mandated deadlines — but just several hours later, lawyers with the Department of Justice (DOJ) contradicted Azar, asking the judge to extend the deadline.

A California federal court told the Trump administration last week to reunite children under five within 14 days, meaning by next Tuesday, and to reunite all others within 30 days. The judge also told officials to make sure parents can contact their kids within 10 days if they haven’t already been able to find them.

This was a tall order, but Azar said officials were working expeditiously and could meet the court-mandated deadlines. He said this even after admitting that they were still verifying which of the 11,800 migrant minors in its custody were separated from their parents at the southwest border as part of the administration’s “zero tolerance” policy of criminally prosecuting asylum-seeking parents. Azar was able to provide a ballpark figure, saying under 3,000 kids were rendered “unaccompanied” due to this policy and approximately 101 of those children were under the age of five.

“We will comply with the artificial deadlines created by the court, deadlines that were not informed by the process needed to vet parents, including confirming parentage, as well as confirming the suitability of placement with that parent,” Azar told reporters Thursday.

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In filing submitted to U.S. District Court Judge Dana Sabraw just before midnight Thursday Pacific Time, Trump officials sought clarification, asking which families it needs to reunify to comply with court order. The government asked whether the deadline applies to parents who’ve already been deported, arguing that this is an especially difficult task. The Justice Department lawyers also asked the court to clarify the start date for separations, as some families were separated before the official start date of the “zero tolerance” policy in May 2018.

The process of verifying which child belongs to which parent is time-consuming, as officials were not properly documenting this information in case files:

Screenshot of government court filing
Screenshot of government court filing

So now, the department is playing catch up, as HHS grantees are “swabbing the cheeks of the children” in its custody while Department of Homeland (DHS) and some HHS personnel are in ICE detention swabbing the cheeks of parents, looking to make a DNA match. This costly process, devised to protect children from being placed in the hands of potential human traffickers, takes no less than a week, lawyers said. Meanwhile, immigration advocates have voiced concerns about the lack of consent on the part of children and about what the government may do with such sensitive human data.

The Trump administration is also “observing communications or interactions” between families to confirm a relationship. They claimed that this is done for the kid’s safety, citing a few outlier cases in which parents posed a danger to kids.

Officials asked for a deadline that takes these factors into consideration, but provided no specific suggested date.

“Given the possibility of false claims of parentage, confirming parentage is critical to ensure that children are returned to their parents, not to potential traffickers,” DOJ lawyers wrote in the court filing. “The Government…seeks clarification that in cases where parentage cannot be confirmed quickly, HHS will not be in violation of the Court’s order if reunification occurs outside of the timelines provided by the Court.”

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Government lawyers also informed the judge that when they reunite kids with parents who are in ICE custody undergoing immigration court, they’ll do so by detaining the families together. That’s how they’ll comply with last week’s injunction against a family separation case, Ms. L v. ICE.

“To comply with the Ms. L injunction, the government will not separate families but detain families together during the pendency of immigration proceedings when they are apprehended at or between ports of entry and therefore subject to the Ms. L injunction,” the DOJ lawyers wrote an older document attached to the new filing.

It’s unclear whether that’ll satisfy the judge’s order, as indefinite family detention violates another court order, Flores v. Reno or the “Flores settlement”, that states “accompanied” children must be detained in the least restrictive settings and for no longer than 20 days. Azar told reporters on Thursday that no child has been sent to any ICE facility, but that last week’s injunction forces officials to do this.

The judge is scheduled to hold a telephone hearing at noon Pacific Time on Friday.

This is a developing story and will be updated as new information becomes available.