LOS ANGELES (CN) - A Justice Department attorney said Monday that the government has no constitutional duty to provide mental health treatment to migrant families who were separated under President Donald Trump’s now-abandoned zero tolerance immigration policy but who were later released.
After former Attorney General Jeff Sessions announced the policy in May 2018, nearly 3,000 children were separated from their parents while crossing the border in the first month alone, including more than 100 younger than four and some as young as 18 months.
Three mothers who were separated from their children under the policy but later released from Department of Homeland Security custody said in their July 2018 class action lawsuit they should be entitled to ongoing mental health care after suffering enormous emotional trauma from the separation.
The plaintiffs in the Ms. JP v. Sessions matter, who claim their Fifth Amendment rights to due process and equal protection were violated, seek treatment in line with standards for care under the Flores settlement.
In court papers seeking class certification, plaintiffs have asked that mental health screenings be provided to all parents who have or will have children in DHS custody.
But DOJ attorney Michael Heyse, appearing in court telephonically on Monday, said the government opposes class certification since it isn’t clear whether all class members will require ongoing mental care after the initial screening.
“Class relief must apply to all members. It can’t be piecemeal,” Heyse said, adding that plaintiffs can’t be adequate class representatives since they’ve been released and reunited with their families.
Heyse said the plaintiffs’ request for extended, ongoing mental care is a “remarkable shift” from the Wakefield standard, a policy that requires federal detention centers to provide immediate care, such as drug prescriptions, to individuals released from custody.
Further, the government is only obligated to provide constitutionally adequate mental care for plaintiffs, “not the best and most expensive care,” Heyse said, adding that the government never neglected to provide a screening when one was requested.
Daniel Craig of Sidley Austin, an attorney for the plaintiffs, said health experts have submitted in court briefs that the impact of emotional trauma can often prevent individuals from knowing they’re traumatized or in need of care.
“How can they self identify to [Immigration and Customs Enforcement] as needing mental care when they can’t self diagnose?” asked Craig, adding that screenings should be been done while migrants are still in detention.
Craig said the Wakefield standard applies only to formerly detained individuals who can seek treatment on their own.
“The government knew it would inflict trauma by launching this policy,” Craig said. “It would be inequitable to allow the government to escape its obligations.”
U.S District Judge John Kronstadt, who did not indicate how we would rule on the respective motions, asked Craig if any prospective order would also extend treatment to the children of detained migrant parents.
“Yes, the trauma extends to them as well,” Craig said, adding that the government should pay for care up until the point when families can seek care on their own.
Heyse asked Kronstadt to toss the entire suit since the plaintiffs’ claims are similar to those in the settled Ms. L v U.S. Immigration and Customs Enforcement case in San Diego.
U.S. District Judge Dana Sabraw approved a settlement in November 2018 that allows families separated at the U.S.-Mexico border to redo their asylum interviews.
But Kronstadt held that it is common for cases with overlapping claims to proceed.
“My tentative view is that claims can be inherently transitory,” Kronstadt said.
Due to the ongoing federal government shutdown, Heyse said he could not provide an updated figure of the number of parents with children in DHS custody who are still detained.
Kronstadt closed the hearing by urging both parties to engage in settlement discussions.
Kronstadt indicated in an order after the hearing that he is inclined to deny the government’s motion to dismiss the case.
He also set a Jan. 21 deadline for the government to provide an update on the number of class members still in detention.