WASHINGTON (CN) - Attorneys for young immigrants separated from their parents at the U.S.-Mexico border claim in a new federal class action that the government is deporting the now-reunified families without fully processing the children's asylum claims.
Justin Bernick with the firm Hogan Lovells represents the six lead plaintiffs, all of whom are being detained at detention facilities across Texas. They accuse immigration officials of pressuring or coercing parents with expedited removal orders to waive the right of their children to pursue asylum claims.
Citing details that came to light in the California class action Ms. L v. Immigration and Customs Enforcement, the complaint contends that ICE officials are presenting removable parents with a waiver form containing two misleading options: be removed with your children or deported without them.
"The forms do not recognize that the children have independent rights to seek asylum, and a right to be accompanied by their parent(s) pending the outcome of those proceedings," the 42-page complaint says.
Bernick has not responded to an email seeking comment on the lawsuit.
Following the court-ordered deadline for the government to reunite all 2,551 children over the age 5 separated from their parents, Justice Department attorney Sarah Fabian said Friday during a status conference that 1,000 families are now subject to immediate deportation.
But according to the July 27 lawsuit, immigration officials gave parents mere minutes to choose between repatriation with or without their children. In addition to noting that the parents had no opportunity to review the waiver forms or ask questions, the complaint notes that some of the parents in question are illiterate.
"Parents are not executing the waiver knowingly, intelligently, and voluntarily," the complaint says.
U.S. District Judge Paul Friedman has been assigned to preside over the new case in Washington. Appointed to the court in 1994 by then President Bill Clinton, Friedman was critical of the waiver forms back in June when he blocked the government from deporting a Guatemalan mother prior to reunification with her son.
"Simply put, the form is not worth the paper it is written on," Friedman wrote in a July 17 opinion.
The right that the immigrant children have access to asylum procedures upon reunification with their parents is focal point of the July 27 lawsuit.
"The minor children in these families - many of whom came to the U.S. to escape horrifying violence that they themselves face - have been completely deprived of the right to seek asylum, even though their individual right to seek asylum is guaranteed by Sections 235 and 240 of the INA and the Fifth Amendment of the Constitution," the complaint says, abbreviating the Immigration and Nationality Act.
Five of the lead plaintiffs are minors from Honduras. The sixth is from Guatemala. The children say gangs have either threatened them or their parents, or that they feared religious persecution or abuse from other family members.
One of the plaintiffs, identified by the initials D.B.G., says she fled from Honduras because a gang there "threatened to kill her to retaliate against her mother, who made a police report after the gang murdered her second cousin." D.B.G. "is also scared to return to Honduras because her father is physically and emotionally abusive and threatened to kill her,” the complaint continues.
According to the lawsuit, children separated from their families under the Trump administration's "zero-tolerance" border-crossing policy have been effectively barred from obtaining a credible-fear interview to determine if they have a valid claim for asylum.
That's because, the complaint says, they were placed in separate immigration proceedings after being separated from their families.
The lawsuit further claims that some parents were too emotionally distraught from being forcibly separated from their children to meaningfully participate in their own credible-fear interviews, and received negative determinations as a result.
"In many circumstances, their children could have provided compelling evidence of the basis for the whole family's credible fear,” the complaint states. “Yet these parents are not being granted new 'credible fear' interviews following reunification. Thus, many young children have been denied access to asylum because their parents' interviews were tainted by the unlawful separation and therefore fundamentally unfair."
The class alleges violations of the Immigration and National Act, the due-process clause of the U.S. Constitution and the Administrative Procedure Act.
In addition to review of the government's expedited-removal policy, the class seeks a temporary restraining order barring the government from removing any reunified families before they can undergo credible-fear interviews.
Attorney General Jeff Sessions is named as a defendant, along with various officials from Health and Human Services and Homeland Security.
Representatives for Health and Human Services and Homeland Security did not respond to a request for comment. Meanwhile on Monday the Department of Justice requested that the case should be transferred to San Diego for consolidation with the Ms. L class action.
“The relief sought here is fundamentally inconsistent with the claims in Ms. L, where the parents pressed a theory that they are entitled to be detained with, and have immigration-removal decisions made together with, their children,” the opposition brief says.
Meanwhile, the ACLU attorneys handing Ms. L asked the judge in that case Monday to hold off on a request for a temporary restraining order on further deportations until Friedman decides whether to grant the government's motion to transfer the D.C. case to the judge hearing Ms. L.
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