SAN DIEGO (CN) – A federal judge Friday heard arguments for what he called a “very significant and interesting issue”: whether the government should be barred from separating asylum-seeking families in immigrant detention facilities.
U.S. District Judge Dana Sabraw is tasked with deciding whether to enjoin Immigration and Customs Enforcement from detaining asylum-seeking parents and children in separate detention facilities, sometimes thousands of miles away.
The American Civil Liberties Union filed the case on behalf of two women, identified as Ms. L and Ms. C, who were separated from their children while being detained in immigration facilities.
Top brass from the Trump administration has suggested separating families could be used as a “deterrent” for those who come to the U.S. seeking asylum; the ACLU claims that concept has already been put into practice by immigration officials and it violates the due process rights of mothers like Ms. L and Ms. C and their children.
In a separate but related move Friday, the Trump administration announced that it would stop granting Temporary Protected Status to around 57,000 Hondurans who have lived in the states for 20 years.
A New York Times investigation in April found at least 700 children were taken from their parents since October, including more than 100 children under the age of 4.
The ACLU has since asked their case to be certified as a class action to represent hundreds of families who have been separated.
On Friday, Judge Sabraw expressed concern that separation could be violating the due process rights of asylum-seeking families and was not in the “best interest” of the children as required by the Trafficking Victims Protection Act, which governs the rights of unaccompanied immigrant children who enter the U.S.
“The statute requires the government to do what’s best for the child. Doing what’s best for the child has to contemplate if separation is best for the child. The government is making the child unaccompanied by determining to detain the parent,” Sabraw pointed out in noting the “child does not just show up unaccompanied.”
But Department of Justice attorney Sarah Fabian said separating parents and children does not violate their due process rights.
She said the government has no policy or practice of separating families to “deter” immigrants from seeking asylum in the U.S. Fabian said the number of children separated from their parents accounts for about 10 percent of the total border crossings, which “does not establish a widespread policy.”
“Any separation decision is made in context of other actions that are part of the overall framework of immigration enforcement,” Fabian said. “There is not a constitutional right to family unity in the face of otherwise lawful detention.”
Fabian also noted there are only 2,700 beds at immigration detention facilities which hold families, including only one facility in Pennsylvania with less than 100 beds which accommodates fathers and children.
Sabraw retorted that “It seems like somewhere in that process the best interest of the child is lost.”
The judge pondered why the government didn’t take “one extra step” and perform a DNA test to confirm parentage in the case of Ms. L. Sabraw ordered the test be performed and the mother and her daughter were reunited in March after being separated by thousands of miles for months.
ACLU Immigrants’ Rights Project attorney Lee Gelernt told the judge “the government is not really making a determination based on anything” in deciding to separate asylum-seeking parents and kids. He said an injunction should be ordered to make the government detain children and parents together unless the parent is found to be a danger to the child or unfit to parent.
Gelernt said in an interview with reporters following the court hearing that none of the three family detention centers has been filled to capacity.
“We have case after case where the parent is given no reason for it, they have documents and they’re just being separated,” Gelernt said.
“All we’re saying is ‘Why?’ That’s the central question: ‘why are you doing this,’ why are you always looking for a reason to separate rather than keep together?”
Sabraw took the matter under submission and is expected to issue a written ruling.