Late Tuesday night, a federal judge ordered the federal government to reunite migrant parents with the children they’ve been separated from in recent months. The injunction, delivered in a blistering 24-page order, holds within it a small glimmer of justice for the thousands of children who remain separated from their parents as public outcry over the Trump administration’s treatment of migrant families continues.
Nearly all children under 5 years old must be returned to their parents within 14 days. Children older than that must be reunited within a month.
The practice of separating families, US District Judge Dana Sabraw wrote, was implemented without any tracking of the children after their separation from their parents, no plans or accommodation to allow for children and parents to stay in touch once separated, and no system or plan to reunite them. “This is a startling reality,” Sabraw wrote. “The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process.”
The order stems from a lawsuit filed by the ACLU of San Diego in February 2018, months before Attorney General Jeff Sessions formally announced the beginning of a “zero-tolerance policy,” requiring US attorneys at the border to charge and prosecute people arriving at the border with illegal entry and reentry. Because of regulations over how children may be detained, parents and children who arrived at the border together were separated. That policy, announced in early April, resulted in more than 2,000 children being torn from their parents.
The lawsuit, however, underlines that the practice of separating children from parents began well before the zero-tolerance policy went into effect. The plaintiff who anchored the lawsuit at the outset, a woman known as Ms. L, arrived at the San Ysidro Port of Entry in California with her then-6-year-old daughter S.S. to seek asylum. The two had fled the Democratic Republic of the Congo because of fears of religious persecution. After a few days of detention, S.S. was taken from her mother, “screaming and crying, pleading with guards not to take her away from her mother,” the ACLU wrote in its complaint.
What followed is a story now familiar in the midst of the ongoing crisis. Ms. L stayed in immigration detention while her S.S. was shuttled to a facility in Chicago. The two were kept apart for five months, and allowed only half a dozen phone calls to each other in that entire time. They’ve since been reunited; Ms. L cleared a key hurdle in her asylum case and was released from immigration detention. The complaint outlines other similar cases, like that of Ms. C, a Brazilian mom separated from her 14-year-old son for a stunning eight months.
Under the injunction, the federal government is now blocked from deporting parents who have been separated from their children, “unless the Class Member affirmatively, knowingly, and voluntarily declines to be reunited with the child.” And with some exceptions, Sabraw also prohibited family separations going forward.
Still, Sabraw wrote, his injunction, which will hold in place while the lawsuit proceeds, “does not implicate the Government’s discretionary authority to enforce immigration or other criminal laws.” Sabraw’s order, in other words, does not have any bearing on the Trump administration’s zero-tolerance policy. His order only concerns the fallout from the Trump administration’s decision to prosecute every person who crosses into the United States.
Customs and Border Protection announced this week that it’s putting off referring some migrants for prosecution, but in a speech on Tuesday just hours before Sabraw’s order was released, Sessions reiterated that he is committed to this harsh anti-immigration agenda. “I’m convinced that the people of this country support these efforts,” Sessions said.