WASHINGTON (CN) – A Guatemalan mother separated from her 9-year-old son at the U.S.-Mexico border in mid-May will be reunited with him by midnight on Friday, a federal judge has ordered.
The opinion and order issued Wednesday by U.S. District Judge Paul Friedman means that the mother, identified only as E.F. in court filings, will see her son six days before the July 26 deadline a federal judge in San Diego set for the government to reunite all separated children over 5 with their parents.
Friedman said that E.F. is likely to prevail on the merits of her claim that the ongoing separation from her son violates her due process rights, which she premised on a constitutional right to family integrity.
“The separation imposed by defendants absolutely precludes Ms. E.F.’s involvement in any aspect of her son’s care, custody, and control from religion to education,” the 21-page opinion says. “And the forced separation prevents her from expressing love for, and comfort to, her son – comfort that he surely needs as he endures the bewildering experience of detention.”
E.F. crossed the border with her son on May 14 near Presidio, Texas, immediately surrendered to immigration officials, and asserted a claim for asylum. The next day, officials took her son, deeming him an unaccompanied minor and transferring him into the custody of the Office of Refugee Resettlement.
E.F. was convicted of improper entry, a misdemeanor, sentenced to time served and has since lost her asylum claim. She is now subject to immediate removal and has asked the court to intervene to reunite her with her son before she is deported.
Friedman’s opinion notes that E.F. has only spoken to her son several times over the phone since their separation in May, and highlights the emotional toll inflicted by the Trump administration’s “zero-tolerance” border policy.
According to E.F., her son just cries when the speak, seeking only to know when they will see each other again.
The boy told his mom during one conversation that his nose was bleeding but he was “too scared to tell anyone.”
“My son used to be such a happy child who was always joking around with me,” E.F. said in a declaration. “Now he just seems depressed.”
She goes on to say: “I am very worried about my son. Since we were separated, I feel lonely and desperate. I have had trouble eating and sleeping.”
She wakes up crying, she said, remembering that her son was taken from her.
According to Friedman, the government has presented no evidence that E.F. is not her son’s biological mother, nor that she poses a danger to her son or is an unfit parent – requirements for the government to show a compelling state interest that would justify their continued separation.
“While defendants have a legitimate interest in enforcing the immigration laws and deterring unlawful immigration, nothing in federal law suggests that deterring immigration by indefinitely separating families once the parents have been transferred to immigration custody is a compelling or legitimate government interest,” the opinion says.
Friedman also called the forced separation policy “overbroad because it equally deters both lawful and lawful conduct.”
“The fact that immigration officials administered the same statutes and regulations through 2017 without routinely separating families lends further support to the conclusion that defendants’ actions are not narrowly tailored,” the opinion says. “The ‘zero-tolerance’ immigration policy therefore is likely not the least restrictive means for furthering defendants’ purported interest in enforcing the immigration laws.”
E.F. initially brought suit June 20, along with two other separated parents – M.G.U. and A.P.F. – who have both since been reunited with their children.
Friedman had expressed reluctance to grant a preliminary injunction to E.F. during a July 12 hearing so as not to interfere with the nationwide injunction from the Southern District of California to reunite children over 5 with their parents by July 26.
But in his July 18 opinion, Friedman noted the irreparable harm, calling the separation “excruciating.”
Citing evidence from the American Academy of Pediatrics, Friedman noted that “detained immigrant children may experience high rates of post-traumatic stress disorder, anxiety, and depression.”
Detained adults seeking asylum, meanwhile, may develop health problems of their own and have difficulty parenting their kids post-separation, the opinion says.