(CN) – A federal judge ordered on Friday a family separation class action should be expanded to include potentially thousands more families separated at the U.S.-Mexico border before the policy was formally announced by the Trump administration last year.
A report from the Office of Inspector General, under the Department of Health & Human Services, announced while 2,737 children have been identified as being separated from their parents after being processed at the border last year, “thousands of children may have been separated during an influx that began in 2017” before U.S. District Judge Dana Sabraw ordered the government to identify and reunite separated families this past June.
The process of family separations at the border may have begun as early as July 2017 in El Paso, Texas according to the report.
In court, the government argued that this was not new information and should not come as a surprise to the petitioners, the American Civil Liberties Union, when Sabraw issued his order in June 2018 to reunite families that had been separated.
But in a 14-page order issued on Friday, Sabraw disagreed with the government’s assessment that the family separation policy was not new.
“However, that suggestion stands in stark contrast to Defendants’ representations in this case in as late as May of 2018 that the government did not have either a policy or practice of separating families at the border,” writes Sabraw. “In light of those representations, it is unreasonable to suggest that Plaintiffs should have known that potentially thousands of parents and children had been separated at the border prior to the Court’s June 26, 2018 Orders.”
The federal government argued in court at previous hearings that this new group presents a different legal and factual situation from the current class because the children are no longer in Office of Refugee Resettlement Care and reunification with their parents may be impossible.
Sabraw said that reunification may not be the only option and accounting the children who were separated is one of the first steps to determine “number and status” of the separated children.
“And, finally, Defendants’ argument ignores Plaintiffs’ request for declaratory relief, namely a declaration that the separation of class members from their children was and is unlawful,” Sabraw writes.
Sabraw also disputes the argument that identifying the newly proposed class members would be burdensome as he says it clearly can be done.
The OIG’s new report shows that the class that was ordered to be reunified with their families has to be modified at the request of the ACLU, who said that the class should not exclude those families.
Justice Department attorney Scott Stewart argued in court last month that families separated before Sabraw’s order should not be included in the class and instead should file their own individual lawsuits.
Sabraw said when the case first began and when separate lawsuits were being filed, the government advocated for consolidation to avoid separate actions across multiple courthouses. He said forcing parents to bring new lawsuits challenging the separation from their children makes little sense when the same legal claim is already being made for the class.
“It also ignores the harsh reality of this case, namely that 471 parents in the presently defined class were removed from this country without their children,” Sabraw said.
While the issue of the relief to be afforded has already been argued in court, Sabraw said the court will stay the application of its preliminary injunction to the newly included class members pending further briefing from the parties.
Last month, Sabraw called the class action in the Southern District of California “arbitrary” in light of the release of a report.
“Clearly, the OIG Report is a significant development in this case. And, importantly, the contents of the Report are undisputed,” Sabraw wrote.
In response to Sabraw’s order, the ACLU’s lead attorney Lee Gelernt said, “The court made clear that potentially thousands of children’s lives are at stake and that the Trump administration cannot simply ignore the devastation it has caused.”