The Morning Report
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Here in San Diego, U.S. District Judge Dana Sabraw has been overseeing the reunification of thousands of children who were separated from their parents under the Trump administration’s “zero-tolerance” policy.
The reunifications are a result of Sabraw’s court order on June 26 stopping the Trump administration from continuing to separate families and ordering the government to reunite all children under 5 with their parents by July 10, and all remaining children by July 26.
The case can be difficult to follow for many reasons – there are near-daily hearings, making it hard to find the most up-to-date information; Sabraw has both praised and excoriated the government’s efforts at reuniting families; and because the case has drawn national interest, national reporters and interest groups have seized on different points and developments as the case has progressed.
More than a thousand children have been reunited with their parents, but more than 700 still have not and there continue to be outstanding questions as to what should happen to families after they are reunified, and what should happen in the cases where reunifications haven’t happened yet.
Here is what you need to know about the case so far and what’s happening next.
Who’s behind the challenge?
In November 2017 – months before the Trump administration officially started its zero-tolerance policy of prosecuting anyone caught crossing the border illegally, which resulted in the separations of thousands of migrant children from their parents – a Congolese woman seeking asylum and her 7-year-old daughter were separated at the San Ysidro Port of Entry.
The mother was detained at the Otay Mesa Detention Center in San Diego County, while the daughter was sent to a facility in Chicago.
In February, the American Civil Liberties Union filed a lawsuit on behalf of the mother, known as Ms. L in court documents. That lawsuit has since become a class action lawsuit – meaning it would not just seek relief for Ms. L, but for a group of individuals facing the same issue – and is at the center of efforts to reunify the thousands of separated families.
What do we know about the judge overseeing the case?
Sabraw is a federal judge in the Southern District of California, which includes San Diego and Imperial counties. He was nominated by President George W. Bush and confirmed by the Senate to the seat in 2003. Before that he was a Superior Court judge in San Diego.
Sabraw did his undergraduate studies at San Diego State University and is married to San Diego District Attorney Summer Stephan.
Friends and attorneys described him to the Union-Tribune as a brilliant and even-handed jurist who’s willing to tackle complex legal issues.
One San Diego Superior Court judge who worked with Sabraw in the Vista courthouse decades ago told the U-T that “Judge Sabraw is brilliant, has excellent judicial temperament, lawyers love being in his courtroom. He’s a gentleman to every person who walks into his courtroom. I believe that’s because he’s such a quality human being.”
What’s happened in the case so far?
On June 26, Sabraw issued a national injunction stopping the Trump administration from continuing to separate families. President Donald Trump had issued an executive order six days earlier to stop the practice, but it included no plans on how to reunite the already separated families.
“The facts set forth before the Court portray reactive governance – responses to address a chaotic circumstance of the Government’s own making,” Sabraw wrote in his order. “They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution. This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children.”
Sabraw ordered the government to reunite all children under 5 with their parents by July 10, and all remaining children by July 26.
As those deadlines have come and gone, new issues have arisen.
The government has deemed hundreds of children and parents “ineligible” for reunification, including more than 400 children whose parents have already been deported.
The ACLU has also brought forward new issues, and has asked Sabraw to delay deportations of reunified families. The organization has submitted hundreds of pages of court filings that describe parents being coerced and misinformed into making decisions about waiving reunification rights or agreeing to deportation.
How many reunifications have taken place?
Under the Trump administration’s “zero-tolerance” policy 2,634 children were separated from their parents. As of July 26, 757 had not yet been reunited – 46 of them under the age of 5.
Why haven’t some families been reunited?
The government has deemed some of the families “ineligible” for reunification.
This includes several different circumstances, including parents who’ve already been deported, parents who the government hasn’t been able to locate yet, parents with criminal records or situations where the adults from whom the child was separated were found to not be the biological parent.
Twelve parents of separated children under 5 have been removed from the United States, and 431 children between the ages of 5 and 17 weren’t able to be reunified because their parents were “outside the U.S.” or deported. The government has only specifically broken down criminal charges against parents in that category for children under 5, but they range from DUIs to “wanted by El Salvador.” The New Yorker raised important questions about these “ineligible” categories last week.
Some parents have also waived their rights to reunification, according to the government. But it’s unclear whether all the parents in this category understood what they were agreeing to. Last week, the ACLU released hundreds of pages of affidavits describing how parents may have been misled into signing paperwork that waves their right to be reunified with their children.
On Friday, Sabraw ordered that the government provide the ACLU a list of all deported parents and parents deemed “ineligible” by Wednesday, Aug. 1.
What happens to families once they’re reunited?
It appears that the government has been giving families a choice upon reunification: Be deported with their child, or have their child remain in the United States to pursue their immigration cases and potentially stay.
The ACLU asked Sabraw to halt deportations of these families for seven days after reunification. Sabraw temporarily delayed deportations while he heard arguments on the matter.
The ACLU submitted affidavits to bolster its case that chaos and coercion is forcing parents to make a really tough decision in way too little time. This weekend, the ACLU filed more testimony – this time from an attorney in El Paso.
The document recounts the experience of several fathers, who say that upon reunification with their children, they were given a document by Immigration and Customs Enforcement agents with three options: Be deported with your children, be deported without your children and wait to speak with a lawyer.
The fathers said that the first option – being deported with child – had been pre-selected and those who attempted to select something different were yelled at or told they could not do that by ICE agents. The fathers eventually were able to select a different option – to be deported without their children.
Sabraw didn’t rule on this matter during a status conference Friday, so the temporary freeze is still in place.
What’s happening next?
There will be a telephonic status conference on Friday.
Outstanding questions in the case include the seven-day period between reunification and deportation, and the fate of the children whose parents have already been deported and who were otherwise deemed “ineligible” for reunification by the government.