ACLU Seeks to Expand Class Action Against Immigrant Separation

SAN DIEGO (CN) – A federal judge Thursday ticked off what an attorney for the American Civil Liberties Union called “bombshell” facts when he weighed whether the family separation class action should be expanded to include potentially thousands more families separated at the U.S.-Mexico border before the policy was formally announced by the Trump administration.

At a nearly two-hour court hearing, U.S. District Judge Dana Sabraw called the current date by which class members were included in the family separation class action in the Southern District of California “arbitrary” in light of the release of a report last month by the Office of Inspector General which found thousands more families may have been separated under the zero tolerance immigration policy beginning as early as July 2017 in El Paso, Texas.

ACLU Immigrants’ Rights Project attorney Lee Gelernt asked Sabraw last December to clarify the scope of the family separation class certification does not exclude children and parents separated prior to Sabraw’s June 26, 2018 order requiring the federal government to reunite families it had separated.

Tears run down the face of Naomi Liem, 10, of Franklin Park, N.J., on Capitol Hill in Washington, Tuesday, June 26, 2018, during a protest against immigrant families being split up. (AP Photo/Carolyn Kaster)

He said Thursday the class attorneys filed the request to clarify the scope of the class after identifying around 10 families separated before the government’s zero tolerance policy was in place. He said he had “no idea” last year there could have been thousands more families separated by the government.

Sabraw said Thursday the request to include families in the class separated before the zero tolerance policy was formally announced last April “is the essence” of the initial case brought last February challenging the lawfulness of separating parents and kids at the U.S.-Mexico border.

“If that is the legal question at issue, shouldn’t the class include everyone allegedly unlawfully separated? Why should it be tied to an arbitrary date? Isn’t it important to the process to have an accounting – to know what happened and to whom?” Sabraw asked Justice Department attorney Scott Stewart.

Stewart suggested the case is only about reunifying the children who were in the care of the Office of Refugee Resettlement last summer and suggested those families separated prior to Sabraw’s  class certification should bring their own individual lawsuits, seek reunification outside of court or pursue remedies through other branches of government beyond the court.

“I’m just not sure we can keep going that way,” Stewart said of adding potentially thousands more class members.

“If plaintiffs are allowed to blow the case into some other galaxy, we will have to fight tooth and nail,” Stewart added.

Gelernt disputed the burden for reunification should fall on the additional separated families, noting “the enormous burden” the task was last year for non-governmental organizations involved in the family separation steering committee to reunite kids with parents in remote towns in Central America.

Sabraw calmly pointed out to Stewart that Gelernt and the class attorneys “are not clairvoyants” and only learned about the thousands of other separated families through the Inspector General’s report in January and investigative reporting by journalists.

“We are talking about human beings. Every person needs to be accounted for,” Sabraw said.

“The IG report is thorough, not inaccurate – it appears to be 100 percent factual. The separation policy began in July 2017 in El Paso with a pilot project. That is the harsh reality. I am stating facts,” Sabraw said.

Sabraw took the matter under submission and said he would issue an order “as quickly as I can.”

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