SAN DIEGO (CN) – A federal judge on Thursday ordered the Justice Department to start conducting asylum interviews for families separated at the U.S.-Mexico border, noting it is required to do so per the terms of a settlement negotiated with the families’ attorneys last month and by “statutory obligation.”
The schism over whether the government should be required to implement the terms of a deal reached in the consolidated family separation litigation in the Southern District of California started last week when attorneys for the families’ filed an emergency request with U.S. District Judge Dana Sabraw.
According to the families’ attorneys, the Justice Department refuses to start the asylum process for at least 60 people who have signed the settlement waiver, binding them to the terms the parties reached last month.
The government’s refusal to conduct asylum interviews led more than 40 detained families to opt for deportation “because they simply could not wait in detention any longer,” according to the families’ attorneys.
But Justice Department attorney Scott Stewart told Sabraw at a hearing Tuesday the government could not be ordered to start carrying out the asylum process until the settlement agreement is formally approved at a hearing scheduled for Nov. 15.
Stewart claimed the government faces a “significant legal risk” in implementing the settlement prior to final approval, noting “the government needs to be careful” because some objections to the settlement could come in that would prevent approval.
Sabraw knocked down Stewart’s contention in a five-page order Thursday, noting the asylum process was triggered once election forms were signed by class members – not when the court grants final approval of the agreement.
“The provision of notice and reviews and interviews under this paragraph are not dependent on the court’s ‘approval’ of the agreement. Rather, they are triggered by the class member’s execution of the election form,” Sabraw found.
“Those are the plain terms of the agreement, and they are consistent with defense counsel’s repeated representations to the court and plaintiffs’ counsel that defendants wanted to proceed expeditiously and ‘get moving on this,’” Sabraw added.
The agreement requires the government to provide notice of orientation for class members’ credible fear interview process “no later than three days” from when a parent or child signs the waiver to pursue asylum. Those interviews must be conducted within 48 hours after the class member receives orientation about the process, according to the settlement.
The judge also found Stewart’s concern the settlement might not be approved “is a theoretical possibility” that “there is no indication will occur,” noting the only objection filed so far was actually a request to be included in the settlement and “not an objection to the merits of the agreement.”
Sabraw found no prejudice to the government in implementing the credible fear interviews under the asylum process for the 60 people who have opted into the settlement, noting: “Defendants have a statutory obligation to provide class members access to asylum procedures.”
He added: “Providing that access now as opposed to later does not prejudice defendants.”
A status conference in the family separation litigation is scheduled for Nov. 9.