Government lawyers stated in a court filing this week that the Trump administration had only reunited four children under the age of 5 with their families, out of the 102 separated from their parents at the U.S.-Mexico border in recent months.
The practice of separating families has been part of the Trump administration’s “zero-tolerance” immigration policy, which refers anyone detained at the border for prosecution, including those seeking asylum in the United States.
Earlier in June, President Trump signed an executive order rolling back family separations, a policy his own administration implemented. After the American Civil Liberties Union (ACLU) sued the Trump administration to speed up the reunification process in late June, a federal judge ordered the administration to reunite families who had been broken up at the border within 30 days, or 14 days for those with children under the age of 5.
In total, the Department of Health and Human Services (HHS), which is charged with overseeing those children forcibly taken from their parents, says there are around 3,000 minors waiting to be reunited with their families. Officials have until July 27 to reunite the remaining approximately 2,900 minors over the age of 5 with their parents.
Last week, the administration requested an extension on the reunification process for those children under the age of 5, stating in a separate hearing Monday that it had only reunited two of them with their parents and would not be able to meet the court-imposed deadline for the rest. U.S. District Judge Dana Sabraw subsequently declined to issue an extension, demanding instead that government lawyers return to court to explain why they would be unable to reunite the remaining children with their families by July 10.
On Tuesday, with the court-mandated deadline looming, the government responded. Administration lawyers said just four children had been reunited with their families, and 51 children were eligible for reunification with a parent.
Additionally, according to the lawyers, 20 children were eligible for reunification but would not be reunified by the July 10 deadline “due to legitimate logistical impediments that render timely compliance impossible or excusable.” Those “impediments” included deportation of a parent or “safety and suitability screenings” that were ongoing.
The ACLU argued, in response to that claim, that the administration had not made a good-faith effort to contact those parents who had been deported to facilitate reunification with their children. In a press call later Tuesday, HHS officials and officials with the Department of Homeland Security (DHS) suggested that there was nothing stopping those parents from consulting with consulate authorities to find their children. Many of those who had left the country without their child, they claimed, had done so because leaving the child in the United States had been their intended goal.
I didn't get to ask my question about this but in a press call, HHS & DHS officials said if a parent wishes to reunite with kid, they can consult with consulate. & when parents are removed and decline to take their child, it's because leaving a child here is the intended goal. https://t.co/MD2eyBQSbA
— Amanda Michelle Gomez (@amanduhgomez) July 10, 2018
In Tuesday’s filing, administration lawyers stated that a remaining 27 children were not eligible for reunification with a parent and were therefore not subject to the court-mandated reunification deadline. They claimed the adults in those cases were found to either have criminal histories, or were not the child’s actual parent. One parent was suspected of child abuse; another was living in a household with another adult who had an outstanding warrant for criminal sexual abuse of a minor.
In one instance, the administration said the parent of one of the separated minors was undergoing treatment for a communicable disease and would be reunited with their child once treatment was complete.
Ten of the children were ineligible for family reunification because their parent was in the “custody of U.S. Marshals Service” or “state or county custody.”
“They will be assessed for reunification after they are released from criminal custody, provided that Defendants are made aware of that release,” lawyers added.
In a court hearing later on Tuesday, the administration gave additional details on the 51 children eligible for reunification, who had not yet been united with their families. Of that group, they said, 34 parents had undergone and passed criminal background checks and DNA verification. Sixteen had undergone and passed background checks but had not completed DNA verification.
ACLU lawyers took issue with the remaining 16. If those parents were able to prove a familial bond with their child using a birth certificate or official documentation, they argued, there should be no hold-up in the reunification process.
“DNA testing doesn’t need to be done in every case,” they said. “If those [parents] submitted birth certificates…[we] suggest those kids be released.”
In the likely scenario that the Trump administration is unable to reunite those eligible children with their families by the court-mandated Tuesday night deadline, officials may still have an out. During Tuesday afternoon’s court hearing, Judge Sabraw stated that he expected administration officials to reunite as many as 63 of the eligible separated children with their parents by the deadline. The court would reconvene on Friday to establish whether administration officials had carried out that order.
However, so long as officials are able to complete those reunifications by that Friday, or can prove that they have made a “good faith” effort to do so, it’s unlikely they will be held in contempt of court.
It’s unclear what will happen to families detained at the border moving forward. Although President Trump’s executive order supposedly puts a stop to the family separation practice, documents newly obtained by Slate show the HHS Office of Refugee Resettlement has begun discussing the possibility of a “surge” in child separations, with officials proposing the financial implications of an additional “25,400 beds for immigrant minors by the end of the calendar year.”
As Slate notes, “The documents do not indicate that ORR officials have specific knowledge that family separations will increase but do show that the agency is preparing for the possibility.”
With additional reporting by Amanda Michelle Gomez.