Judge Tells Trump Admin To Lay Off Toughest Vetting For Separated Families

Alice Ollstein contributed reporting. 

A federal judge told the Trump administration on Tuesday to lay off using some of its most stringent vetting procedures before reuniting families separated at the border.

At a status conference, U.S. District Judge Dana Sabraw told the government that it did not need to fingerprint everyone in a given parent’s household in order to reunite that parent with their child.

Earlier this year, the departments of Homeland Security and Health and Human Services — the agencies responsible for detaining families at the border and housing children who have been separated from their families, respectively — announced a new partnership in which potential sponsors to take children out of HHS custody would be fingerprinted, as would everyone in the sponsor’s household. The fingerprints would be provided to DHS, which houses Immigration and Customs Enforcement, to conduct a background check.

Given that many households for potential sponsors include undocumented immigrants wary of being in contact with ICE, the fingerprint requirement may have led to an increase in the amount of time children spend in government custody.

Sabraw said Tuesday that “full background checks of other adults in the household are not necessary under these unique circumstances.”

“I would adopt a more streamlined approach here,” he said, adding: “The parents are not applying for custody. They don’t have to prove they will be a good sponsor. The government has to prove they are unfit or a danger.”

He similarly said the government should limit its use of DNA tests to reunite parents and children, following the ACLU’s argument that the government was using the tests to delay family reunifications. (In response to the ACLU’s suit against the government over family separations, Sabraw ordered last month that the families must be reunited.)

“The purpose of the [Trafficking Victims Protection Act ] is to promote the best interests of the child and to reunite families,” the ACLU had argued. “Delayed reunification, especially for babies and toddlers, is not in the best interests of the child.”

“I would permit DNA testing when necessary, when there is a legitimate good faith concern about parentage or legitimate concern the government will not meet the reunification deadline,” Sabraw said.

Sabraw had set Tuesday as the deadline for the government to reunite parents with children under 5 years old from whom they’d been separated at the border. The Trump administration fell far short of that requirement, saying that only a third of the families would be reunited by the end of the day.

Justice Department lawyer Sarah Fabian said at one point in the conference that one of the separated children was not eligible for release because, in the course of a previous fingerprint background check, someone in the child’s parent’s household was found to have a history of sexual abuse.

Sabraw granted that in this one case the reunification would not go forward absent a new placement, in a household where the sex offender was not present.