SAN DIEGO (CN) – A federal judge in California on Friday ordered the federal government to give the American Civil Liberties Union a list of the 101 children under the age of five in immigration custody as part of his order last week requiring reunification of families separated at the U.S.-Mexico border.
Children under five years old must be reunited with their parents by next week as ordered by U.S. District Judge Dana Sabraw in San Diego on June 26. Older children must be returned to their parents within 30 days of Sabraw’s order.
At a status conference on Friday, attorneys for the federal government said there are 86 parents who have been in contact with 83 children under 5 who are in federal custody. Of that group of parents, 46 are in U.S. Immigration and Customs Enforcement custody, 19 have been deported, and two have criminal records that make them unfit to be reunited with their children, according to Justice Department attorney Sarah Fabian.
Sabraw said the government providing the court and the ACLU with the names of the children is an important step in the reunification procedure, as it will help identify who can be easily reunited so resources can be allocated to find those more difficult to locate.
The judge also ordered parents no longer in federal custody be included in the injunction.
Fabian said the government couldn’t produce the list immediately. Additionally, Fabian said people who are detained may not be part of the class included in the Sabraw’s injunction.
“It is the challenge for us to give a list to those who are not tied to the class,” said Fabian.
Sabraw said part of the relief sought is reuniting the class of parents with their parents, but also to establish a process for the future to track parents and children so this doesn’t happen again.
“Being over-inclusive is encouraged,” Sabraw told Fabian.
He gave the government until Saturday to produce the list and set another telephone conference for Monday.
ACLU attorney Lee Gelernt said it should not be difficult to reunite children with their parents, even if they have been released from federal custody.
“I don’t understand why they don’t know where a parent is after they’re released,” said Gelernt. “There must be addresses.”
Later Gelernt added, “Right now we’re completely in the dark. The government holds all the information.”
In a filing late Thursday, the federal government says it needs more time to reunite families because DNA swab tests to determine if parents and children held in custody under multiple agencies are actually related are timely.
The exact number of children separated from their families under the Trump’s administration’s zero-tolerance immigration policy is unknown, but estimates range from 2,000 to 3,000. On Thursday, Health and Human Services Secretary Alex Azar said in a conference call the number of children taken into the agency’s custody is “under 3,000 children in total.”
Azar said, “We will comply with the artificial deadlines created by the court, deadlines that were not informed by the process needed to vet parents, including confirming parentage, as well as confirming the suitability of placement with that parent.”
But late Thursday, the government asked Sabraw for more time and to clarify his order.
“Defendants need this court’s guidance on issues that arise because of [Health and Human Services’] understanding of its statutory obligations to ensure the safety of children before transferring them out of HHS custody,” the Justice Department said in its response.
To reunite parents with their children Health and Human Services is using DNA swab testing because “it is a reasonably prompt and efficient method for determining biological parentage in a significant number of cases.”
Jonathan White, who is part of the uniformed service of the U.S. Public Health Service, said the agency generally knows the names and locations of all children in its custody. But the online tracking software used by the Office of Refugee Resettlement does not “determine class membership or facilitate reunification under the criteria and deadlines established by the court’s order,” he said in a declaration filed Thursday.
That information likely rests with the Department of Homeland Security, while Health and Human Services must collect it through field interviews, he added.
At the Friday hearing, Sabraw declined to relax the deadline but said he’ll look at the issue on Monday.