Families who were separated crossing the U.S.-Mexico border can't be deported immediately after they are reunited — at least for the next week, a federal judge told the U.S. government Monday.
That temporary stay came at the request of the American Civil Liberties Union, which successfully took the government to court this year to compel the Trump administration to reunite more than 2,000 immigrant children with their parents. Issued by the same judge who ordered the reunifications, the stay will remain in effect until July 23, and the government has until then to convince the judge not to make a similar order that would stay in place longer.
In a filing Sunday, the ACLU asked U.S. District Judge Dana Sabraw to give parents a week after reunification to allow the parents to make an “informed, non-coerced decision if they are going to leave their children behind” so that the minors may pursue their own asylum claims. Parents could also choose to bring their children with them when they are deported, but children, whose immigration proceedings are on separate legal tracks from their parents, may have their own arguments for seeking refuge in the United States.
Parents need time to consider their options and gather legal advice, the advocacy group argued.
“Parents cannot make such momentous decisions on behalf of their families without knowing what claims their children may have, or even that their children may have independent claims,” lawyers for the ACLU filed.
Sarah Fabian, a lawyer for the Department of Justice, raised the concern that temporarily blocking those deportations could delay the reunification process for families. The judge has given the government until next Thursday to reunify some 2,500 children under 17 who were separated from their parents; federal officials have already partially complied with Sabraw’s order to reunify all children under 5 with their parents by last week.
The government is already facing difficult space constraints on where it may legally detain families together; detaining reunited families this week instead of immediately returning them to their home countries could mean less space in those facilities for other family reunifications, Fabian said. The Trump administration has made it clear that it does not want to release migrant families into the country, but legal and logistical challenges leave it few options.
The judge said at a San Diego court conference Monday that slowing reunifications is on the basis of facility space is “not an option.”
“The government will have to make space,” he told Fabian.
The families in question were separated over the past several months at the southern border as a result of the Trump administration’s “zero tolerance” policy, which sent children into federal custody while their parents were criminally charged for crossing the border illegally. While Trump has since reversed course on that practice, declaring in an executive order last month that families should be kept together at the border, the process of reuniting families who were split apart has been piecemeal and chaotic.
The ACLU argues that while families remain in immigration detention, they have been given insufficient access to legal counsel to navigate the convoluted and increasingly difficult process of seeking asylum in the United States. In court documents, immigration lawyers say they have had few opportunities to advise migrant parents on their legal rights; without fully understanding their rights, attorneys say, those parents could unintentionally hurt their own, and their children’s, chances at asylum.
“I am gravely concerned by the possibility that parents already have or will unknowingly waive away their rights and the rights of their children in their desperation be reunified,” said Manoj Govindaiah, the director of family detention services at RAICES, a legal advocacy group working with many separated families.