SAN DIEGO (CN) – A federal judge on Wednesday broached one of the most important decisions in the family separation case at the U.S.-Mexico border: whether reunited families should be immediately deported back to their home countries.
U.S. District Judge Dana Sabraw heard arguments on whether the parents and kids who were separated at the U.S.-Mexico border under President Donald Trump’s “zero tolerance” immigration policy should be immediately deported now that most of the families have been reunified.
While the judge did not rule from the bench Wednesday, he found the stay on deportations of reunified families should remain in effect until he issues a written order.
Sabraw previously granted an emergency stay on deportations at the American Civil Liberties Union’s request after reports surfaced the government was immediately deporting reunited families without giving them time to decide whether to pursue asylum claims or other legal options to remain in the U.S.
But a recently filed class action in the District of Columbia on behalf of children of the separated families – most of whom hail from Guatemala and Honduras – complicated matters in the deportation decision.
Sabraw declined to rule on the pending motion for a temporary restraining order until U.S. District Judge Paul Friedman decided whether to rule on a similar motion in his court or transfer the case to Sabraw’s court.
Friedman severed that case – transferring most of the claims to Sabraw’s docket – and found the San Diego-based judge should also be the one to decide whether to stay deportations of reunified families.
Sabraw, a George W. Bush appointee, finally weighed that choice at a Wednesday hearing where the attorneys in the case appeared telephonically.
Most of the hearing focused on how a temporary restraining order would affect the minor plaintiffs in the recently transferred case M.M.M. v Sessions. The attorneys in that case say their clients haven’t been allowed to pursue asylum claims separate and apart from their parents, as is their right.
For the status quo to be restored to the kids separated from their parents, attorney Zachary Best told Sabraw that at a minimum the kids need to be granted credible fear interviews to pursue their own asylum claims and that they should be accompanied by their parents during the process.
Best said the government has a policy and practice of maintaining family units when either a parent or child has a successful credible fear interview and enters immigration proceedings, even if the other family member’s case failed.
He said agents at detention facilities have been telling families they are going to be deported this week, an indication the government is poised to immediately deport families if Sabraw lifts the stay.
But Justice Department attorney Scott Stewart warned Sabraw against any further delays in making a decision on whether families can be deported.
He pointed out 13 days have passed since the majority of families from the original class action brought by separated parents have been reunited, giving families more than the 7 days requested by their attorneys with the American Civil Liberties Union to decide whether or not to pursue asylum claims.
“This has largely been resolved with the passage of time,” Stewart said.
Stewart said there is “potential unrest” at one family detention facility where people want to be deported or released.
Sabraw questioned Stewart’s assertion that children’s asylum claims cannot be “bootstrapped” to their parents in order to avoid deportation proceedings for the adult.
“What you’ve just outlined, Mr. Stewart, would be inconsistent with immigration law,” Sabraw said.
But Stewart said the government’s history of allowing families to remain together while one family member pursues asylum claims is a “matter of discretion.”
Contradicting that point, Best said there is a “statutory hook” for maintaining family units because children have a right to consult with “whoever they want” in their asylum case, including their parent.
Stewart disputed a child might be able to prevail on asylum claims where a parent had already failed, saying the “claims of fear are going to be the same … they rise or fall together.”
But Best’s colleague Justin Bernick said the government has taken a “divide-and-conquer approach” by separating families, which has led parents to be given credible fear interviews while “under duress” and leading to a much higher failure rate.
“It’s an unusual circumstance of the government’s own making,” Bernick said.
A status update on the process of reuniting deported parents with their kids will be filed Thursday afternoon. Another status conference is scheduled for Friday.