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By Miriam Raftery

June 27, 2018 (San Diego) – U.S. District Judge Dana Sabraw in San Diego issued a ruling Tuesday ordering the Trump administration to end separation of parents from children at the border and to reunite families already separated, except in limited circumstances.

Judge Sabraw, who was appointed by Republican President George W. Bush, is the son of a Japanese immigrant and U.S. Army veteran. He had harsh words for the Trump administration, particularly for having “no system in place to keep track of, provide effective communication with and promptly produce” separated children.

Sabraw noted that the government “readily keeps track of personal property of detainees in criminal and immigration proceedings,” adding, “The unfortunate reality is that under the present system immigrant children are not accounted for with the same efficiency and accuracy as property.”

Under the judge’s order, all children under age 5 must be reunited with parents within 14 days; children over 5 must be reunited within 30 days.  In addition, U.S. Immigration and Customs Enforcement (ICE) must arrange phone contact with parents.

The separations occurred because Attorney General Jeff Session declared a “zero tolerance” policy under which every adult entering the U.S. illegally would be criminally prosecuted and any children with them would be taken away.  Over 2,000 children were separated, drawing international condemnation.

Disturbingly, the case revealed that even parents who came here legally with their children and requested asylum at the border without crossing into the U.S. had their children taken away, treated as criminals though they had not committed any crime.

The class action case included two named defendants. The first, an African mother and 6-year-old daughter, were separated after coming to our border and asking for asylum after fleeing persecution in the Democratic Republic of the Congo. Yet the suit states the child was taken “frantically screaming” from her mother and sent to a Chicago facility while her mother filed for asylum in California.  The second defendant had crossed illegally, yet both mothers lost their children.

Facing stinging criticism, protests and international rebukes, President Trump recently issued an executive order to halt separations, but did not provide any details on reuniting those families already separated.  This ruling makes clear that parents cannot be deported without being reunited with their children, unless they specifically waive that right and choose to have their child stay in the U.S.

There are exceptions if a parent has been found to be abusive, or if a child is traveling with someone found not to be a parent or family member.

The ruling came hours after 17 states including California sued the Trump administration to require family reunification.

ACLU Immigrants Rights Project Attorney Lee Gelernt called the ruling “an enormous victory for parents and children who thought they may never see each other again,” adding, “Tears will be flowing in detention centers across the country when the families learn they will be reunited.”

The ruling, however, leaves unclear where exactly the reunited families will be housed while awaiting immigration hearings or criminal proceedings, since a prior court ruling limited the number of days that children could be detained in adult detention facilities where parents are behind bars.

Before the zero tolerance policy, families who arrived legally seeking asylum at the border as well as most who crossed the border illegally were, after brief detention for vetting backgrounds, released into communities to await their hearings. 

The Trump administration has indicated its intent to utilize some military bases for housing immigrants awaiting hearings, a process that can take many months due to backlogged immigration and criminal court systems.

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