Judge: Practice of Separating Families at Border ‘Brutal, Offensive’

SAN DIEGO (CN) – A federal judge found late Wednesday the government’s practice of separating immigrant parents and their minor children who come to the U.S. seeking asylum potentially violates the families’ due process rights.

U.S. District Judge Dana Sabraw found while the government’s practice of separating asylum-seeking minors and parents while immigration officials review their cases does not violate the Asylum Statute or Administrative Procedure Act, the families did provide enough facts to survive dismissal as to their claim for due process rights violations.

The class action, Ms L. v. U.S. Immigration and Customs Enforcement, was brought by a Congolese mother and her 7-year-old daughter who were separated thousands of miles for months after crossing the U.S.-Mexico border in San Diego seeking asylum.

Represented by the American Civil Liberties Union, Ms. L claims she was held in a separate immigration detention facility from her young daughter without the government showing she was an unfit parent or posed a danger to her child.

Ms. L was later released from immigration custody and reunited with her daughter after filing the class action in the Southern District of California.

Judge Sabraw heard oral arguments in the case last month, and postured during the hearing whether separating minors from their parents was in the “best interest” of the children.

Sabraw found Wednesday the case was not moot, which the government argued it should be tossed since Ms. L and her daughter have been reunited.

The judge noted “defendants have not shown Ms. L was released from detention and reunited with her daughter for reasons other than this litigation,” pointing out the government could not explain why DNA testing was not conducted during the four months the pair was separated but only once the court ordered it.

“Arriving on United States soil with one’s minor child to pursue relief extended by U.S. law—as well as international law to which the United States has acceded—calls out for careful assessment of how governmental actors treat such people and whether constitutional protections should apply,” Sabraw wrote.

The judge found Ms. L “at a minimum” alleged facts showing the government’s practice of separating minor children and parents when they are both held in immigration detention centers violates her constitutional right to family integrity and “shocks the conscience.”

“These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child. Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency,” Sabraw wrote.

But the judge found Ms. L failed to state claims under the Asylum Act and Administrative Procedure Act and dismissed those claims.

Sabraw indicated he will later issue separate orders on pending motions for class certification and preliminary injunction seeking to stop the government’s practice of separating asylum-seeking families.


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