WASHINGTON (CN) – Attorneys pushed a federal judge Tuesday to order relief for six foreign-born children who say their parents are being coerced by the government into waiving their asylum claims.
Still deciding whether he can issue an injunction to halt the alleged policy, U.S. District Judge Paul Friedman noted in a 90-minute hearing this morning that he has evolved in his thinking on what the law at issue allows.
Though Friedman previously ruled that the relevant part of the U.S. Code, 1252(e)(3), does not allow for injunctive relief, he said during the hearing that a relevant subsection might allow him to issue an injunction after all.
Friedman had transferred the bulk of the case to San Diego on Aug. 3 to be joined with the class action Ms. L. v. Immigration and Customs Enforcement, but retained the single claim seeking judicial review of the alleged policy that encapsulates the heart of the case.
On Tuesday, Friedman asked Hogan Lovells attorney Justin Bernick to pinpoint the written policy.
Representing the children, Bernick pointed first and foremost to a June 23 fact sheet issued by the Department of Homeland Security that he says explicitly ties reunification to removal.
The fact sheet says that the Departments of Homeland Security and Health and Human Services have established a process informing family members of their children’s whereabouts “to ensure that those adults who are subject to removal are reunited with their children for the purposes of removal.”
Under the Trump administration’s “zero-tolerance” policy, children separated from their parents at the border were classified as unaccompanied minors, a move that Friedman himself has already invalidated.
The children, once classified as unaccompanied minors, were ordered to appear for removal proceedings in an immigration court, where Bernick says they should have been able to petition for asylum with help from an counsel.
Officials instead presented forms to parents subject to removal orders after failing to demonstrate what the law calls a credible fear sent back home. The forms gave parents two options: be reunited and deported together, or be deported alone and leave their children behind.
While the lawsuit is not challenging the legality of the form, Bernick says the form is being used to deny the children the ability to pursue asylum independently of their parents.
The government is using the form as a “smokescreen” to conceal the policy, he said, noting that the form says nothing about the asylum rights of the children, or how agreeing to removal would impact those rights.
Once the parents sign the forms agreeing to this option, the government moves to terminate the asylum procedures for the children before reunifying the families, and blocks the children from undergoing their own credible-fear determinations.
“There’s no legal authority for that,” Bernick said during the hearing. “And that’s exactly the point.”
Friedman pressed Bernick on his argument that the children will automatically be removed.
“Doesn’t there have to be a removal order,” he asked.
“No,” Bernick said. “And that’s the policy your honor.”
Bernick later added: “They can’t litigate from their home countries, your honor, if they’re dead.”
The children, who fled “horrifying violence” in Honduras and Guatemala with their parents, are asking the court to restore the status quo prior to the implementation of family separation.
But the government says the issue raised by the children is already before U.S. District Judge Dana Sabraw in San Diego, and that the children cannot bring such a claim in the District of Columbia since they are not seeking judicial review of specific expedited removal orders.
Justice Department attorney Scott Stewart denied Tuesday that the administration has a written policy that violates children’s due-process rights.
Parents can override their children’s right to pursue asylum, Stewart said, adding that Bernick already conceded during a prior hearing that it was possible for their rights to be waived.
“That emphasizes how far this is from a systemic challenge,” Stewart said.
Friedman said he was troubled that children who came with parents had been classified as unaccompanied, and pressed Stewart to explain that policy.
Stewart said he was unsure any such policy exists, noting that the points Friedman identified are before Sabraw in San Diego, who ordered the government in June to reunite all separated families.
Friedman did not say when he would issue a ruling in the case, noting only that it must be done quickly. He asked both parties to consider what his order should look like, and asked Bernick to revisit his prior proposed order to determine whether it should be tweaked.