Federal judge bars separation of migrant children, orders family reunification

WASHINGTON - Trump administration officials scrambled Wednesday to craft their response to a federal judge’s order requiring immigration agencies to quickly begin reunifying migrant families separated as a result of the “zero tolerance” policy, a decision that has created more internal confusion within a system the judge labeled “chaotic.”

Judge Dana Sabraw of the United States District Court for the Southern District of California granted a preliminary injunction sought by the American Civil Liberties Union. Late Tuesday, he said all migrant children separated from their parents must be returned to their families within 30 days, allowing just 14 days for the return of children under 5. He also ordered that parents be allowed to speak by phone with their children within 10 days.

Teams of attorneys at the Departments of Homeland Security, Health and Human Services, and Justice spent Wednesday analyzing the ruling and how the administration intends to respond. A Justice Department spokesman declined to say whether the agency will appeal.

Sabraw’s ruling is the latest complication in a controversy that has already proved politically perilous for President Donald Trump, who last week issued an executive order ending the forced-separation policy, replacing it with indefinite family detention. Still, about 2,000 children remain split from their parents. The government had urged Sabraw not to grant the nationwide injunction, saying Trump’s order, which followed days of bipartisan outcry, had resolved the concerns animating the suit.

The court said it did not. Instead, it found that the zero-tolerance policy, begun in early May, along with the executive order and a subsequent fact sheet issued by the Department of Homeland Security outlining the process of removal, marked a sharp departure from “measured and ordered governance, which is central to the concept of due process enshrined in our Constitution.” It faulted the Trump administration for “a chaotic circumstance of the Government’s own making.”

The judge stated bluntly: “The unfortunate reality is that under the present system, migrant children are not accounted for with the same efficiency and accuracy as property.”

A Justice Department spokesman said Wednesday that the decision “makes it even more imperative that Congress finally act to give federal law enforcement the ability to simultaneously enforce the law and keep families together.” The spokesman added: “Without this action by Congress, lawlessness at the border will continue, which will only lead to predictable results - more heroin and fentanyl pushed by Mexican cartels plaguing our communities, a surge in MS-13 gang members, and an increase in the number of human trafficking prosecutions.”

On Capitol Hill, House lawmakers on Wednesday rejected a Republican immigration bill that called for funding Trump’s border wall, offering a pathway to U.S. citizenship for young undocumented immigrants while addressing the family-separation crisis.

In his 24-page order, Sabraw ruled that children could be separated at the border only if adults with them were found to pose a danger to the children. He also said adults could not be deported from the country without their children.

Sabraw, 59, was nominated to the federal bench by President George W. Bush in 2003.

The lawsuit’s initial plaintiffs were a mother and her 7-year-old daughter, split up after arriving in the United States in search of sanctuary from persecution in Congo. They arrived at the San Diego border in November, the suit alleges, at which point the “frantically screaming” child was taken to a facility in Chicago, while her mother, identified only as “Ms. L,” filed for asylum in California.

The pair were reunited in March, but the civil liberties group persisted with claims by other migrants.

The accounts of migrants in the suit, the judge wrote in granting the injunction, reveal “the separations at issue have been agonizing for the parents who have endured them.” Citing evidence of the long-term destabilizing impact on children of being separated from their parents, he further said that “irreparable injury” to parents and children alike would result from the administration’s current practices.

The government, Sabraw said, “has an affirmative obligation to track and promptly reunify these family members.” He called it “startling” that the administration had not undertaken adequate planning before deciding to strip children from parents held for criminal prosecution. “There was no reunification plan in place, and families have been separated for months,” he wrote.

The government’s capacity to quickly reunite families was questioned Tuesday at a Senate Finance Committee hearing, where HHS Secretary Alex Azar described a laborious process of background checks and verifications of family connections. He was unable to say how long it would take to get families back together.

Lee Gelernt, the ACLU’s head attorney in the case, welcomed the injunction.

“This ruling is an enormous victory for parents and children who thought they may never see each other again,” Gelernt said in a statement. “Tears will be flowing in detention centers across the country when the families learn they will be reunited.”

Gelernt said the judge’s injunction should force the government to swiftly reunite children with their parents. Reunification “is not an insurmountable task for the United States government,” he said. “If something is prioritized, it can get done.”

Tuesday’s judgment was issued the same day that Trump notched a victory in securing the Supreme Court’s endorsement of his authority to ban travelers from several majority-Muslim countries. The 5-to-4 decision ended a protracted legal struggle over one of Trump’s central campaign promises.

Just as one conflict came to a resolution, however, the injunction created fresh legal tumult on the newest front in Trump’s battle to remake the country’s immigration system, an effort vehemently resisted by a collection of blue states.

Earlier Tuesday, 17 states, including New York and California, sued Trump’s administration in an attempt to require federal officials to reunite families. While Trump’s executive order jettisoned separation as a prong of his “zero tolerance” approach to immigration, it left in question the fate of the thousands of children who have already been taken from their parents.

On Monday, the U.S. top border security official confirmed that he ordered a suspension of prosecution referrals for adults who cross the border illegally with children, essentially freezing the family separation system that sent nearly 2,500 minors into foster care between May 5 and June 20.

Kevin McAleenan, the commissioner of U.S. Customs and Border Protection, told reporters that migrant children will only be separated from adults who have prior criminal records or if the child is at risk. Border agents will remain vigilant for cases of fraud and human trafficking, McAleenan said, particularly instances of adults traveling with children who are not their own to gain entry and avoid detention.

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The Washington Post’s Nick Miroff contributed to this report.