Judge Considers Whether to Bar Family Separations Over Criminal Histories

SAN DIEGO (CN) – Pleading with a federal judge about what he called “the biggest moment” in the family separation litigation since it was filed, American Civil Liberties Union attorney Lee Gelernt asked Friday for a determination when families can be separated based on a parent’s criminal history.

“At the end of the day, what we’re looking at is over 1,050 separations since the injunction. These are the most minor crimes that no child expert from anywhere in the country would say the parent is a danger,” Gelernt told U.S. District Judge Dana Sabraw.

“We are not saying these crimes should be viewed as trivial, but are a very different thing than concluding the parent is a danger to their child,” Gelernt added.

The ACLU, which filed the initial class action litigation over family separations at the U.S.-Mexico border under the since-abandoned zero tolerance immigration policy, asked Sabraw to enforce a preliminary injunction issued in the case last year after finding the government has continued to separate over 1,000 families, based on parents’ criminal histories, including DUIs and theft.

In this July 17, 2019 file photo, children sleep on a mattress on the floor of the AMAR immigrant shelter in Nuevo Laredo, Mexico. (AP Photo/Marco Ugarte, File)

As of Friday, Gelernt said the government has separated an additional 1,050 families.

Sabraw pointed out the class notifications “very clearly and simply” carved out criminal history as a reason the government can continue separating families.

But Gelernt said the class notifications and preliminary injunction order issued by Sabraw differed on the issue and clarification is needed by the court on the substantive standard of when kids can be separated from their families based on a parent’s criminal history.

Justice Department attorney Scott Stewart said the government has “rightfully exercised its discretion” in determining when separation can occur.

“The defendants here have put into effect a good system while respecting your honor’s ruling,” Stewart said.

But when asked by Sabraw whether he could produce written “standardized procedures” cited in an official’s declaration on how family separation determinations are made by agents at the border, Stewart responded: “I don´t know the answer to that, your honor.”

Justice Department attorney Sarah Fabian suggested all guidance on when families can be separated may not necessarily be contained in written documents and could vary among Customs and Border Protection sectors along the southern border.

Sabraw also pointed out determining parentage questions should not be an issue for the government since there’s a “scientific, quick way” through DNA testing to determine if a parent is who they say they are.

Stewart said the government has employed a pilot program using DNA testing, calling it “a tricky thing to fit into an operational context.”

“My concern is it would be taking a battering ram to a small aspect of the problem. We just don’t have the showing DNA would be needed,” Stewart said in response to Sabraw’s suggestion DNA testing should be available at every station family separation decisions are made.

“We’re not deciding whether the parent is a good parent or a mediocre parent or even a poor parent, we’re deciding if they are a danger,” Sabraw responded.

“Criminal history is an obtuse way of determining fitness and danger, but it has a unique application in the context of this case,” the judge added.

Gelernt acknowledged government experts could use their judgment of a parent’s criminal history in determining a family’s placement, such as if they’d be appropriately housed in a family detention center.

But he said if the government continues to separate families based on any felony or violent misdemeanor, “I think we’d be back here next year with 1,000 more cases.”

“It’s basically child abuse, you are terrorizing these little children,” Gelernt said.

Sabraw took the matter under submission. He indicated he would issue an order directing the government to provide written guidelines various immigration agencies are using to determine whether families should be separated and reunited in the context of a parent’s criminal history.

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