SAN DIEGO (CN) – Handing the federal government its first win since it was sued for separating families at the U.S.-Mexico border, a federal judge Monday found continued separations are discretionary and do not violate a court and executive order abandoning the “zero tolerance” immigration policy.
U.S. District Judge Dana Sabraw found that continued family separations since his June 26, 2018, order enjoining the practice make up less than 1% of the over 524,000 family members who entered the U.S. along the southern border.
Notably in his order Monday, Sabraw found the government may exclude family reunifications “based on any criminal history” of the parent, an issue attorneys for separated families had argued was an abuse of discretion.
He also found the request to review the government’s decision to continue to separate some families based on certain court-approved criteria “warrants caution” and goes beyond the scope of judicial oversight of the executive branch’s right to secure the border.
In his June 2018 preliminary injunction, Sabraw found the federal government was prohibited from separating parents and kids “absent a determination that the parent is unfit or presents a danger to the child.”
Additional carve-outs for who could be separated were identified in Sabraw’s class certification order and included parents with criminal histories, communicable diseases, or people were not the actual parent.
A day after his order, Customs and Border Protection issued a memorandum to its agents detailing how to comply.
The family separation practice was formally abandoned a week earlier when President Donald Trump signed an executive order June 20, 2018, ceasing the “zero tolerance” immigration policy and reestablishing a policy to “maintain family unity.”
During the initial family reunification period, of 2,814 families that were separated, only 29 reunifications were excluded based on the exemptions outlined by the court, according to Sabraw’s summary of the case.
But the American Civil Liberties Union asked Sabraw to enforce his preliminary injunction this past summer after it found hundreds of families may have been improperly separated despite the nationwide injunction, including nearly 750 families separated based on alleged criminal conduct.
At a hearing on the matter this past September, ACLU Immigrants’ Rights Project attorney Lee Gelernt called the continued separations “the biggest moment” in the family separation litigation.
In his 26-page order Monday, Sabraw, a George W. Bush appointee, found “Defendants are generally exercising their discretion to separate families at the border consistent with plaintiffs’ rights to family integrity and the court’s orders.”
But Sabraw did order the government to use DNA testing in all cases where parentage is questioned before opting to separate a parent from a child.
He noted of the nearly 1,000 separated families, 46 had been separated for questions regarding parentage, but the government had failed to conduct DNA testing before separating them.
“Given the right at issue here, the harm that parents and children suffer when they are separated, and the undisputed speed, accuracy and availability of DNA testing, the court finds defendants must conduct DNA testing before separating an adult from a child based on parentage concerns,” Sabraw wrote.
“Such testing, in service to the fundamental right at issue, is clearly warranted. It is also an efficient and definitive way to resolve any concerns about fraudulent documentation,” he added.
Sabraw additionally found the government bears the burden of proving a lack of parentage before separating a family, as family integrity is a constitutionally protected right under the Due Process Clause.
As for the criminal histories question, Sabraw found the history which bears on immigration agents’ decision-making was different than that in child welfare cases and the focus on violent misdemeanors and felonies “indicates good faith and compliance with the court’s orders.
“Given the large number of migrant families arriving at the border and the inherent limitations placed on CBP facilities at the border, defendants must be able to use criminal history as an objective metric not only to assess the parent’s fitness and danger to the child, but also risk of flight, danger to others and suitability for release into the community or placement in an [family residential center] with other families,” Sabraw wrote.
Sabraw also found challenges by the ACLU regarding separations made based on “fitness and danger” to the child should not be micromanaged by the court, especially considering new processes for parents to challenge the decisions.
As for the standards used to exclude families from being held in family residential centers including flight risk or danger to others – but not their own children – Sabraw found when parents are released from immigration detention based on those factors they are still required to be reunified with their kids.
In a statement, Gelernt of the ACLU said they are evaluating the ruling.
“The court strongly reaffirmed that the Trump administration bears the burden if it attempts to separate families based on an accusation that the adult is not the child’s parent,” said Gelernt. “We are evaluating the decision to determine next steps on how to ensure that children are not separated from their parents based on minor infractions.”