The Trump administration told a federal judge on July 6 that it would reunite about half of the children under five years old that it forcibly separated from their parents at the U.S.-Mexico border.
But the Trump administration told the same judge on Tuesday afternoon — the deadline for reunification — that it is on track to return only a third. Out of 102 young children identified, the government reunited just four prior to the court-imposed deadline of July 10, though DOJ lawyers said the administration expected to be able to return another 34 children by the end of the day.
The government says that while dozens more families are eligible for eventual reunification, those parents are either waiting for the results of their DNA tests and background checks, are serving time in criminal detention before they can be transferred back to ICE, or have been deported or released into the U.S. and cannot be located. About a dozen adults, the Justice Department says, are not eligible for reunification with the children they were traveling with because they are not the biological parent of the child or because they have a serious criminal record.
Once again, U.S. District Judge Dana Sabraw did not grant the Trump administration’s request for a deadline extension, but neither did he hold the government in contempt. Rather, he said he hopes the reunification process put in motion by his national injunction continues, and demanded regular updates from the administration going forward.
Though he sternly reminded the administration that “these are firm deadlines, not aspirational goals,” he said he was optimistic because “everyone is rowing in the same direction here.”
Attorneys with the American Civil Liberties Union, which brought the lawsuit on behalf of the separated parents, were less optimistic. In a filing sent to Judge Sabraw hours before the hearing, they accused the Trump administration of failing spectacularly to comply with the order to return the children by Tuesday’s deadline. In particular, they say the Trump administration has made zero effort to reach out to the 12 parents who were deported without their children.
“Defendants have not even tried to contact them or facilitate their reunification by today,” the ACLU said. “Their children are stranded in this country because of Defendants’ actions, and yet Defendants have apparently done nothing to facilitate their reunification.”
They similarly took the administration to task for so far failing to reunite the parents who were released on bond within the U.S. pending their immigration hearings. “Defendants have all of these parents’ contact information, and there are apparently only 8 of them,” the ACLU said.
On a call with reporters just before the hearing, senior ICE official Matthew Albence, the head of the agency’s Enforcement and Removal Operations, told reporters that the burden should be on those parents to locate the children that were taken from them and apply for reunification.
“A parent who has been released has the ability to go to HHS and request to sponsor their child,” he said. “If they choose not to do that it would call into question whether that child is theirs in the first place.”
Citing the “very large number of illegal aliens here in the country,” he said that his agency should not be expected to “sit there and track” those released pending their immigration proceedings.
As for parents deported without their children, Albence suggested they did not want to be reunited and dismissed the government’s responsibility for returning their children to them.
“Many of these parents who have been removed decline to take their child, because they’ve completed the smuggling act,” he said. “Their goal, when they paid their smuggler and these criminal organizations and these cartels five or six thousand to smuggle themselves into the country, their goal was to get their child here. They’ve accomplished that goal. So if they have to return on their own, they’re willing to do so and leave the child here because that was the intended goal of their illegal entry in the first place.”
“Once the parent is removed, ICE has no jurisdiction to have anything to do with that parent,” he added.
Judge Sabraw did not agree. He explicitly included the deported parents in his reunification order, though he has not yet set a firm timeline. The ACLU has suggested that the government be forced to reunite them with their children one week after making contact with them. Instead, Judge Sabraw ordered the ACLU and Trump administration to return to his San Diego courtroom on Friday to give and update on what progress has been made.
Judge Sabraw did, however, agree with the Trump administration that neither his order to reunite the families nor Judge Dolly Gee’s order preserving the 1997 Flores settlement required the Trump administration to release the families it is holding in custody. Rather, he acknowledged that the Trump administration has the option to carry out its stated plan of presenting parents with the choice of indefinite family detention or indefinite separation from their children. If this plan is put into action, parents would be forced to decide between keeping their child with them in a detention center not suitable for children or agreeing to have their child taken from them and placed either in an HHS facility designed for children or with a family sponsor.
Read the Trump administration and ACLU’s joint filing below: