Family Separation Policy May Be Subject to Constitutional Challenge, Judge Rules
Posted June 6, 2018 11:25 p.m. EDT
LOS ANGELES — A federal judge in San Diego on Wednesday refused to dismiss a lawsuit challenging the Trump administration’s practice of taking children from immigrants when they arrive at the border to seek asylum, ruling that the “wrenching separation” of families may violate the Constitution’s guarantees of due process.
“Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency,” Judge Dana M. Sabraw of the Southern District of California wrote in his 25-page opinion.
The judge rejected the government’s claim that the practice of family separations — one of the most controversial features of the government’s crackdown on illegal immigration — cannot be challenged on constitutional grounds, though he did dismiss a separate challenge claiming that the practice violates asylum laws.
The ruling in the case, filed by the American Civil Liberties Union, suggests the court would be open to considering a claim that taking children away from parents who are legally trying to seek asylum in the United States constitutes a violation of the family’s rights to due process.
Attorney General Jeff Sessions announced last month that the administration would criminally prosecute everyone who illegally crosses the Southwest border, in what he called a “zero tolerance” policy intended to deter new migrants, mainly from Central America.
In most of those cases, children traveling with those immigrants are now taken to separate detention facilities, often hundreds or thousands of miles away.
One of the plaintiffs in the case was a Congolese woman who had been separated from her 7-year-old daughter after applying for asylum at the border in San Ysidro, California. According to the lawsuit, the pair had turned themselves in to agents at the port of entry, but after about five days, the child was taken away “screaming and crying, pleading with guards not to take her from her mother,” according to the suit. The child was sent to a shelter in Chicago.
They remained apart for four months. After a legal challenge, the authorities released the mother, performed a DNA test to determine she was in fact the child’s parent and returned her child to her in March.
Another plaintiff, a Brazilian who crossed with her 14-year-old son and asked for asylum, was prosecuted for the misdemeanor of illegal entry because she did not initially arrive at a designated port of entry. She was sentenced to 25 days in jail in Texas; her son was sent to the Chicago facility. After she was released from jail, she waited eight months to be reunited with her child.
In seeking to dismiss the ACLU lawsuit, the administration argued that asylum-seeking families had no constitutional right to remain together. But the judge said that the allegations in the suit “sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective.”
Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said the ruling was a significant step forward in challenging the policy. “We are enormously pleased with the ruling about an issue that has galvanized so many and outraged the country,” he said. “The judge left no doubt that he viewed the practice of separating young children from their parents as inhumane.”
A Justice Department spokesman declined to comment.
The plaintiffs argued in the lawsuit, filed before the administration unveiled its latest zero-tolerance policy, that it was a violation of due process to separate parents and children simply as a means to deter illegal immigration. Only parents who are abusive or unfit to care for their children can legally have them taken away, the suit argued.
“In the strongest possible language, the court rejected the Trump administration’s claim that these families have no constitutional right to remain together,” said Gelernt, who argued the case.
Hundreds of immigrant children had already been separated from their parents at the border even before the latest policy went into effect. In the first two weeks after its unveiling, 638 parents who arrived with 658 children were prosecuted, according to administration officials.
The government plans to fast-track prosecution of those criminally charged with illegal entry in California, with group hearings near the border, according to Reuben Cahn, executive director of Federal Defenders of San Diego. Such expedited proceedings already have been occurring in Arizona and Texas, where dozens of immigrants are prosecuted each day.
Judy London, directing attorney at Public Counsel, a pro bono law firm in Los Angeles that represents asylum-seekers, said the court’s decision, though largely procedural, represented a strong condemnation of the government.
“The judge clearly found that the allegations in the lawsuit, specifically that the government is trying to deter families from seeking asylum by separating parents from children, is egregious behavior,” she said.
The government has argued that when a parent is detained for criminal prosecution, the child becomes unaccompanied and must be taken into custody by authorities. The plaintiffs limited most of their arguments to cases in which parents are not jailed, but are legally seeking asylum.
The Trump administration’s practice of separating children from migrant families entering the United States has drawn criticism from various quarters, including members of Congress and the American Pediatric Association. On Tuesday, the U.N. human rights office urged an immediate halt to the practice, saying it violates human rights and international law.
The administration angrily rejected what it called an ignorant attack by the U.N. body and accused the global organization of hypocrisy.