WASHINGTON (CN) – A federal judge on Monday ordered the government to temporarily halt the removal of a Guatemalan mother separated from her 9-year-old son at the U.S.-Mexico border in May.
Issuing a temporary restraining order, U.S. District Judge Paul Friedman said the government can’t deport the mother, identified only as E.F. in court papers, until he decides whether to issue a preliminary injunction ordering the government to reunify E.F. with her son within 72 hours.
Friedman had wavered about issuing such an order during a July 12 hearing, wondering if and how it would interfere with a nationwide injunction from the Southern District of California directing the government to reunite all separated children with their parents by July 26.
The government has since said, both in the San Diego and in the Washington D.C. cases, that it intends to fully comply with that order.
But E.F., who received a negative credible fear determination, is now subject to immediate removal after an immigration judge affirmed the determination on July 13.
According to Friedman, the government agreed to stay E.F.’s removal only until Tuesday, and declined to commit to keeping her in the country until he rules on the preliminary injunction.
“Defendants have provided no assurance that Ms. E.F. and her 9-year-old son will be reunited before Ms. E.F. is removed from the country,” the 7-page opinion says. “What deeply troubles the Court at this stage is the risk that Ms. E.F. will be removed from the United States without her young son and without her valid consent to be removed without her son, before the Court has an opportunity to rule on her preliminary injunction motion seeking immediate reunification with him.”
Friedman pointed to a recent declaration from the government in the case before U.S. District Judge Dana Sabraw in San Diego stating that immigration officials have so far removed 12 parents without their children.
Friedman indicted in the short opinion that minus a determination that E.F. is an unfit parent or poses a danger to her son, she is likely to prevail on her claim that the ongoing and forcible separation from her son violates her due process rights.
“The Supreme Court has made clear that parents have a liberty interest in family association or family integrity, and in the care, custody, and control of their children,” the opinion says.
The government argued during the July 12 hearing that E.F. had signed a form on June 28 consenting to her removal prior to reunification with her son. Department of Justice attorney Nicole Murley further argued that E.F. had said she wants her son to remain in the United States with an uncle if she is removed.
E.F.’s attorney, Jerome Wesevich with the Texas Riogrande Legal Aid, vigorously denied that claim at the time, and said E.F. – who is partially illiterate – did not know what she was signing when she signed her initials on the form.
Given the confusion about what E.F. wants, Friedman had ordered Wesevich to submit another declaration stating his client’s intentions.
On July 13, E.F. said she wants to pursue all available options to review and appeal her asylum claim. But if she must be deported, she said she wants her son to stay behind to pursue all legal options for staying in the country.
However, she also noted that she wants to be reunited with him before she goes.
“I have not seen my son since May 15, 2018 when government agents separated him from me,” the declaration says. “If I am deported, I want to hug my 9-year-old boy before I go. I know that I may never see him again.”
Friedman credited the declaration, along with another from July 11 where E.F. said she wants to be reunited with her son, over the June 28 form she signed declining reunification prior to removal.
“Simply put, the form is not worth the paper it is written on,” Friedman wrote.
E.F. stated in the July 13 declaration that she fled Guatemala due to death threats. The people who threatened her also threatened to kidnap and kill her son.
Friedman noted that the temporary restraining order might disrupt the government process for making removal decisions, but notes he is merely preserving the status quo temporarily.
“While there may be an interest in allowing the process for removal to run its course without the intervention of the courts, there is a much weightier interest in ensuring that defendants do not impermissibly deprive immigrant parents of their due process rights under the Constitution,” the opinions says.
In a separate order issued Monday, Friedman instructed the government to provide E.F. with the address of the facility where her son is being detained.
Friedman also ordered the government to facilitate daily phone calls between E.F. and her son, along with a Honduran father in the case, A.P.F., who was separated from his 12-year-old daughter.
Friedman had said during the July 12 hearing that he was troubled by representations that the representatives and case managers tasked with facilitating the phone calls are sometimes unavailable and don’t work weekends, and that parents have to pay to make the calls.
Friedman said he would rule on the outstanding motion for a preliminary injunction this week.