The administration won a victory in court this week that rebuts one of the main complaints about the president's immigration policies.
On January 13, Judge Dana Sabraw of the United States District Court for the Southern District of California issued an order in Ms. L. v. ICE, which examined the government's family-separation policy. He held that the government was exercising that policy in a manner consistent with aliens' "rights to family integrity" and with prior orders of the court, with one specific exception that related to the timing of DNA testing of migrants where there is a question about the familial relationship, and "one clarification regarding separations based on family residential center standards".
"Family separation" has become a rallying cry for those who oppose the administration's policies and the administration generally. Democratic candidates Pete Buttigieg, Joe Biden, Elizabeth Warren, and Bernie Sanders all make it key points of their immigration platforms, often in graphic and overly simplistic terms. Here is Sanders', for example:
Bernie will end the barbaric practice of ripping children from their parents and locking children in cages, thoroughly audit and close detention centers, and work to undo the damage President Trump has done to our immigrant community and our national character.
To review these screeds (and many in the press), one would conclude that Border Patrol agents are grabbing screaming children from the hands of overwhelmed parents and, well, locking them in cages. They should all know better. Judge Sabraw does.
The heart of this issue is the administration's earlier "zero-tolerance" policy, under which all adult migrants who had entered illegally were subject to criminal prosecution for illegal entry, without previously recognized exceptions for adults travelling with children. The problem was that, as the Congressional Research Service (CRS) has noted: "Criminally prosecuting adults for illegal border crossing requires detaining them in federal criminal facilities where children are not permitted."
Once the parents were separated from the children, the children were sent to the custody of the Department of Health and Human Services (HHS), pursuant to the Flores settlement agreement and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). As the non-partisan CRS explained: "The widely publicized family separations were a consequence of the Trump Administration's zero tolerance policy, not the result of an explicit family separation policy." (Emphasis added.)
This policy was in effect nationwide for 44 days, from May 7, 2018, until it was ended by executive order on June 20, 2018, when President Trump directed that the Department of Homeland Security (DHS) keep migrant families in detention together through criminal proceedings. Subsequently, U.S. Customs and Border Protection (CBP) stopped referring most illegal entrants for criminal prosecution. CRS estimated in February 2019 that: "Since the zero tolerance policy was implemented, up to 3,000 children may have been separated from their parents."
Shortly after that executive order was issued, on June 26, 2018, Judge Sabraw issued a preliminary injunction in Ms. L. to prevent DHS from separating alien adults and children "absent a determination that the parent is unfit or presents a danger to the child, unless the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child in DHS custody," and directing reunification of parents and children, with limited exceptions. I wrote about that decision on June 29, 2018.
The DHS Office of Inspector General (OIG), HHS OIG, and Government Accountability Office (GAO) examined the policy and its ramifications in-depth, and subsequently determined that the two departments were not prepared for its effects and struggled as a result with reunification, as detailed in particular in a November 25, 2019, DHS OIG report.
I noted above that the policy began nationwide in May 2018. An October 2018 GAO report, however, identified 281 other migrants in family units (FMUs) who had been separated as a result of an initiative in the El Paso Sector of the Border Patrol similar to zero tolerance that was in effect from July to November 2017.
HHS OIG found that by December 2018, most children who were included under the order in Ms. L. (including the migrants from the earlier El Paso implementation) had been reunified, 2,131 with the separated parent, 526 "under other circumstances" (usually to a sponsor and in one case because the "child" turned 18 and was sent to DHS custody), while 159 remained in HHS care.
With respect to those 159 children, parents declined to be reunified in 95 cases, 28 were determined not to have been separated from parents, and an additional 28 were not reunified because HHS "determined that the parent was unfit or posed a danger to the child." Eight were in the process of reunification.
HHS OIG noted that between July 1, 2018, and November 7, 2018, an additional 118 children who had been separated were sent to HHS by DHS, 65 because of criminal history, 18 because of gang affiliation on the part of the parent, 13 because of illness or hospitalization, three based on unspecified immigration history, and 19 for other factors "such as a parent presenting a fraudulent passport or an adult claiming to be a legal guardian without proof." That office complained that HHS had been provided "little detail" by DHS in some of those cases.
Which brings me back to this week's order from Judge Sabraw. He noted that there are five criteria for DHS to consider before a parent is separated from a child at the border: "lack of parentage or fitness, criminal history, communicable disease, and danger to the child."
Where there are doubts about parentage, DHS performs DNA testing on the purported parent and child. The judge held that this testing (which takes 90 minutes and had been implemented at seven locations along the border) must be completed before separation occurs, not after as has taken place apparently in certain instances, where it is not possible "because of operational concerns". He found that "if testing is not available at a particular facility, [the government] can transfer the family to a facility where that testing is available, or take swabs from the parent and child and send the swabs for testing."
With respect to medical issues, the court noted that plaintiffs had identified "two cases of concern": one in which a child was separated from a father because he had HIV, and another in which the mother required surgery, following which she was told that she would need to go through the HHS screening process for unaccompanied alien children.
The government asserted that DHS and HHS were attempting to send children to HHS facilities near the place of the parent's medical treatment to facilitate reunification, and admitted that the two cases were in error. The court declined to find that the government had failed to comply with his orders on this factor.
The court's findings with respect to criminal history (which resulted in the largest number of separations) were more complicated. The government argued, in essence, that separations within this class were only occurring where the parents, "in a good-faith discretionary determination by DHS, would generally" not be released into the community or housed in a U.S. Immigration and Customs Enforcement Family Residential Center (FRC).
The court agreed with the government that separations could occur "based on any criminal history, not just criminal history that bears on a parent's fitness or danger." He held:
Given the large number of migrant families arriving at the border and the inherent limitations placed on CBP facilities at the border, [the government] must be able to use criminal history as an objective metric not only to assess the parent's fitness and danger to the child, but also risk of flight, danger to others and suitability for release into the community or placement in an FRC with other families.
The court held, however (and the government concurred), that convictions under section 275 of the Immigration and Nationality Act (INA) for entry or reentry were different from convictions under section 276 of the INA, for reentry after an order of exclusion, deportation, or removal. In the latter case, the parents fell out of the class (and therefore could be separated), regardless of whether the conviction had occurred before or after the latest entry, but not in the former.
The government agreed, however, to give parents who were convicted under section 276 of the INA and who were deportable the option to allow their children to remain in the United States to pursue their own immigration claims. As an aside, the court noted in a footnote that the number of parents who were subject to section 276 charges but were actually convicted were relatively few — in the Rio Grande Valley Sector of the Border Patrol, only 1.3 percent of parents illegally crossing after removal were actually prosecuted.
With respect to gang affiliation, the court rejected the plaintiffs' argument that the government was "separating parents and children based solely on unsupported allegations of gang affiliation, and that evidence collected after the separations demonstrates those initial determinations of gang affiliation are incorrect," concluding that the record did not support the argument that such determinations were made based on speculation:
Rather, the record reflects that as part of the intake process, border patrol agents may receive information "from foreign governments and other law enforcement databases" indicating "that an individual has been identified as affiliated with a criminal gang[.]" ... Although Plaintiffs complain about the reliability of this evidence, [the government is] relying on objective evidence, not allegations or intuition. [Emphasis added.]
The judge noted that Border Patrol agents had only a limited timeframe to make such determinations, and that where evidence of gang affiliation had been rebutted, the government "reunified the parents and children when appropriate." In these cases, he found, the government was not violating his preliminary injunction with respect to gang affiliation.
Significantly, with respect to fitness and danger, Judge Sabraw held: "The factual circumstances under which these initial determinations are made do not lend themselves to micromanagement by the Court." He concluded: "Given the intensely factual nature of these decisions and the processes now in place for parents to challenge such decisions [including an internal CBP policy that allows parents to dispute findings of fitness and danger, as well as supervisory review] ... the Court declines to find [the government is] violating the injunction with respect to this factor."
Finally, with respect to the government's standards for declining to place FMUs in FRCs (resulting in placement of the parents in adult detention and separation), Judge Sabraw held that the government "must be able to consider danger to others and risk of flight in addition to fitness and danger of a parent to his or her own child." He declined to "wade into the constitutionality of the FRC standards" in light of the scope of the case before him, as well as the discretion that the INA places in the executive branch with respect to such determinations.
He did hold, however, that if a parent were separated under the FRC standards, and thereafter released from adult custody, the parent and child should be reunified in the same way that the government was "reunifying families with resolved communicable diseases or long-term illnesses". He described this holding as a "clarification", however, and "decline[d] to intervene further on this issue."
Critically, Judge Sabraw concluded:
Plaintiffs assert [the government has] returned to systematically separating families at the border. However, the evidence before the Court does not support that assertion. Although family separations have not stopped entirely, the number of family separations compared to the number of family units crossing the border appears to be less than one percent. Furthermore, the Executive Order abandoned the zero tolerance policy in favor of a policy to maintain family unity, and the government has implemented policies and procedures that are largely consistent with this Court's orders prohibiting family separation in the absence of the factors discussed above. [The government has] also gone beyond the scope of the Court's injunction and implemented additional practices related to family separations ... , which provide parents with the reasons for any separations and information on how to challenge any separation decisions.
Except for DNA testing and the clarification regarding FRC standards, [the government's] application of these factors has generally been consistent with this Court's orders and thus Plaintiffs' motion to enforce the preliminary injunction is otherwise respectfully denied. [Emphasis added.]
Regardless, the canard about the ongoing family separation policy continues, as the campaign statements above reveal. Much of this is likely a conflation with the "kids in cages" trope (which, as I have explained previously, was a policy also followed by the Obama administration, is done to protect the children involved, and was exacerbated over the late spring by the very same members of Congress who complained about it).
I can understand (but not condone) politicians who are demagoguing these issues, but what I cannot countenance is the media's refusal to explain them to the public. Consider this, from the editorial board of the Washington Post in October:
Imagine, if you can, the suffering visited upon those children, including many still in diapers and requiring afternoon naps, by the administration's cavalier brutality and incompetence — the anguish of little girls and boys removed from their parents for weeks or months because of a president lacking a conscience and a government whose data systems were not suited to the task of reunification. Those wounds won't heal easily, or ever.
Why isn't the editorial board of the newspaper of record in our nation's capital asking its readers to consider the perils that those parents subjected their children to during the treacherous journey to enter the United States illegally, horrors that were underscored with respect to those children in April in a report by a bipartisan panel of the Homeland Security Advisory Council? I have written about it more times than I can count, including a June 26 post aptly captioned "If You Are Just Now Angry About UAC Detention, You Haven't Been Paying Attention". The "Three-Year-Old Migrant Abandoned in Cornfield" likely needed a diaper change and a nap, too, but the editorial board couldn't find space to include his case.
In a fitting coda, the Post opinion piece ends:
More than 1,000 additional migrant children have been separated in the past 17 months on the grounds, the government says, that their parents or guardians endangered or abused them, or were unable to care for them, or were criminals, or were not actually their parents. The ACLU maintains that in some cases, those separations are also unjustified, triggered by minor offenses committed by the parents, such as shoplifting or driving without a valid license. It has asked Judge Sabraw to set a narrow standard for separations.
In all, the administration has taken at least 5,460 children from their parents. That is a stain on Mr. Trump, on the government he leads and on America.
Judge Sabraw has spoken. Perhaps it is time for the Post to explain.