WASHINGTON (CN) – Nine months after a federal judge ordered families separated at the border under the Trump administration's zero-tolerance policy to be reunited, the government argued Thursday that it is not required to track or reunite children separated from relatives who are not their parents or guardians.
Citizens for Responsibility and Ethics in Washington, better known as CREW, says the Department of Homeland Security is required by the Federal Records Act to document instances when children are separated from non-parents, something Justice Department attorney Kathryn Wyer pushed back on during a two-hour hearing Thursday.
"It's not actually required under the FRA that DHS create records linking children to non-parents," Wyer said, abbreviating the Federal Records Act.
Wyer noted that children apprehended at the border with non-parents are deemed unaccompanied and transferred into the custody of the Department of Health and Human Services.
Wyer noted that a law intended to limit child trafficking requires HHS to take custody, but CREW says DHS' "ad hoc" recordkeeping practices are making it difficult to reunite children with older siblings or other relatives they crossed the border with.
According to Wyer, no precedent exists for reuniting children separated from non-parents or non-guardians.
"There is no holding that says that is required," Wyer said.
CREW, which sued Homeland Security over its recordkeeping practices on Oct. 26, also claims the agency still has not developed a centralized database with adequate records about child separations accessible to both DHS and HHS.
Other components of DHS meanwhile are failing to use new recordkeeping measures to keep track of separations, or note the underlying reason for them, CREW says.
CREW, along with the Refugee and Immigrant Center for Education and Legal Services Inc., has asked a federal judge to require Homeland Security to track separations in a way that complies with the Federal Records Act.
Attorney Wyer argued Thursday that CREW had failed to identify any DHS policy stipulating that the agency must not create records of family separations, and said the agency had in fact collected information that helped with reunification.
U.S. District Judge Rudolph Contreras, a Barack Obama appointee, pressed Wyer on that point during the hearing.
"If all that information was there then why was it so difficult to reunite folks?" he asked.
Wyer chalked the difficulty in reuniting some 2,800 families up to technical issues with sorting through the information the agency did collect.
"It's not really an FRA issue," Wyer said. "It's not really a recordkeeping issue."
CREW alleges that DHS failed to implement an FRA-compliant recordkeeping program adequately documenting its policies in a way that protects the legal rights of those affected by DHS activities.
That includes unaccompanied minors represented by the Refugee and Immigrant Center for Education and Legal Services Inc., or RAICES.
According to CREW attorney Nikhel Sus, the lack of documentation burdens the group in its work.
"When DHS fails to document, then RAICES is left to expend its resources inefficiently," Sus said. "Very inefficiently."
That can include weeks of phone calls to track family members down, he said.
Wyer meanwhile urged the court not to issue an injunction, pointing to ongoing litigation in the Ms. L class action case in San Diego.
U.S. District Judge Dana Sabraw of the Southern District of California ordered federal immigration officials to reunite all families separated at the U.S.-Mexico border by last July, a deadline that was missed.
Wyer said DHS is taking every step to reunite families and should be given time to work through technical issues with recordkeeping.
CREW Executive Director Noah Bookbinder said a ruling in the group’s favor “would be a crucial step in preventing further catastrophic impact on the lives of thousands of immigrants seeking entry to our country.”
“To this day, the Trump Administration continues to carry out family separations at an alarming rate despite their systematic record keeping failures, so we are now asking the courts to intervene and compel DHS to meet basic record keeping requirements mandated by federal law,” Bookbinder said in a statement.
Thursday's hearing came amid a tumultuous week of staff shakeups at DHS. Secretary Kirstjen Nielsen resigned on Sunday, the culmination of ongoing clashes with the president over his push for harder-line immigration policies and the agency's inability to curb illegal immigration.
On Tuesday, DHS undersecretary Claire Grady was forced to resign as well to make room for Trump's preferred pick - Customs and Border Protection commissioner Kevin McAleenan - to take the reins at DHS on Thursday.
And on Wednesday, Nielsen announced that acting Immigration and Customs Enforcement Director Ronald Vitiello was stepping down.
Secret Service Director Randolph Alles stepped down from his post this week as well.
The mass exodus of leadership at the agency raised alarm bells this week, prompting some Republicans, like Sen. Ron Johnson, R-Wis., to speak out.
"We are dealing with a humanitarian and security crisis at the border because Congress has failed to act," Johnson said in a statement Monday. "In addition to congressional dysfunction, I am concerned with a growing leadership void within the department tasked with addressing some of the most significant problems facing the nation."
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