WASHINGTON (CN) – The ongoing chaos and uncertainty surrounding court-ordered family reunifications took center stage in federal court Thursday as attorneys for asylum-seeking parents separated from their children at the border said the government still has no structured reunification plan.
At the start of the hearing, Texas Riogrande Legal Aid attorney Jerome Wesevich posed a question: “Is the government doing enough to end the constitutional violations that are being perpetrated on children right now?”
Wesevich said the government has been vague about what steps it is taking to reunite families, and asked the court for an order requiring reunification within 72 hours of two of his three anonymous clients – Guatemalan citizen E.F. and Honduran citizen A.P.F.
A July 11 discovery response from the government indicates that the third parent, Guatemalan national M.G.U., was reunified Wednesday with her three sons, one of whom is 2 years old.
According to the original July 9 complaint, M.G.U. crossed at a port of entry with her children, sought asylum and was separated from her children the same day she passed a credible-fear assessment.
A declaration from Shalyn Fluharty, the attorney who represented M.G.U. in her credible-fear proceeding, says asylum officers began asking all asylum applicants – including M.G.U. – whether they were members of the so-called “refugee caravan” of roughly 200 migrants from Central America that traveled to the U.S.-Mexico border to seek asylum.
The Department of Justice began prosecuting members of the caravan on May 1.
According to Fluharty’s July 9 declaration, M.G.U. was separated from her children as punishment for traveling with the caravan.
“In my experience prior to this administration’s strategic separation of non-citizen parents from their children, separation of a mother from her child at STFRC was a rare occurrence justified only by concrete evidence that the mother presented a danger to her child or other children,” the declaration says, abbreviating the South Texas Family Residential Center, where M.G.U was transferred after her detention at the border.
In the courtroom Thursday, U.S. District Judge Paul Friedman declined to issue an order from the bench for immediate reunification of the other two parents, questioning whether that would interfere with a nationwide injunction from the Southern District of California that requires the government to reunite separated children over age 5 with their parents by July 26.
Why should one court be acting more expeditiously than another, Friedman asked.
“Because there is no evidence that any further delay is necessary,” Wesevich responded.
In the California case on June 26, U.S. District Judge Dana Sabraw ordered the government to reunite separated children under 5 within 14 days. July 26 had been the deadline for the others.
The government so far has reunited only 57 children under 5; the missed first deadline passed on Tuesday. The Justice Department has since said that 46 of the 103 separated children under 5 are ineligible for reunification.
Friedman pressed Wesevich to clarify the irreparable harm that would result without the court order.
Saying he understands the argument that each day of separation creates harm, Friedman noted that medical and anecdotal evidence of psychological damage to separated children “is persuasive,” particularly concerning the video footage of family reunifications where children don’t seem to recognize their parents; some even recoil.
Wesevich urged Friedman to consider a recent court order issued in a similar case in the Northern District of Illinois, which required family reunification within 72 hours.
With each passing day, the psychological and emotional damage could be permanent, he said. Parents could be taking care of damaged children for life, “and have a harder time raising them because of the daily experience they’re having right now,” Wesevich added.
Department of Justice attorney Nicole Murley meanwhile urged Friedman not to issue a court order requiring immediate reunification, pointing out that the plaintiff in the Illinois case, W.S.R, is a minor not a parent, and therefore falls outside of the California class action.
She also shot back at the assertion that the government is lagging behind in its reunification efforts.
“It is incorrect to say we are not meeting our obligations under the California injunction,” Murley said. The process takes time, she said, noting that the government is undertaking DNA testing and determining whether the parents are fit to be with their kids.
Murley said, as far as she knows, fitness is not an issue for E.F. or A.P.F., but she said the process is ongoing.
Wesevich countered that the government was supposed to do DNA testing a week ago, and suggested the government was reticent to expend the necessary resources to quickly facilitate family reunifications.
Insisting that the government intends to meet the California injunction deadline, Murley said it will reunify E.F. with her 9-year-old son, and A.P.F. with his 12-year-old daughter, by July 26.
There is some confusion, however, about whether E.F. wants to be reunited with her son prior to her removal from the country.
Having received a negative credible-fear decision on her asylum claim E.F. is seeking a review of that determination, which a judge could rule on as soon as today.
Murley said E.F. requested on June 28 not be reunited with her son and wants him to stay in the United States with an uncle instead.
Wesevich vigorously denied that assertion and said no evidence exists that E.F., whom he described as semi-illiterate, gave informed consent or that she was advised on June 28 of her immigration status.
There is no record of whom E.F. spoke with that day, “only a check mark on a form,” Wesevich said.
Friedman grew impatient with the lack of clarity on this point.
“Maybe I’m confused,” the judge said, noting that a July 11 declaration from her attorneys failed to say whether anyone counseled, advised or explained to E.F. that she can be removed without her son, or be reunited with him beforehand.
“I want you and your team to make sure she’s not removed without her child if that’s not what she wants,” he later added. “Figure out how to do it.”
Friedman later ordered Wesevich to provide a clarifying declaration about her desires to the court, which the attorney promised he would get by Friday.
Wesevich asked the court to stay her removal in the meantime but Friedrich instead ordered Murley to ask the government if they would voluntarily stay removal until there is clarity about what E.F. wants.