Reunite Migrant Families Within 30 days: US District Court Stays Trump’s Family Separation Policy [Read Order]

Judge Dana M. Sabraw of the United States District Court for the Southern District of California on Tuesday granted an injunction on the lawsuit filed by American Civil Liberties Union (ACLU) against family separation of migrants. The Judge further directed the authorities to reunite families with their minor children under the age of five within 14 days, and with those over the age of five, within 30 days.The “zero tolerance” policyMore than 2,300 migrant children were reportedly separated from their parents after the Trump administration began a “zero tolerance” policy in early May, seeking to prosecute all adults who crossed the border illegally, including those traveling with children. Over the ensuing weeks, the news media was saturated with stories of immigrant families being separated at the border. People protested, and elected officials weighed in. Congress threatened action, and seventeen states filed a complaint against the Federal Government challenging the practice.Thereafter, an Executive Order (EO) was issued on 20 June, requiring preservation of the “family unit” by keeping migrant families together during criminal and immigration proceedings to the extent permitted by law, while also maintaining “rigorous” enforcement of immigration laws. This order, however, did not address the reunification of over 2,000 children with their families. Thereafter, a “Fact Sheet” issued by the Department of Homeland Security (DHS) on 23 June outlined the government’s efforts to “ensure that those adults who are subject to removal are reunited with their children for the purposes of removal.”ACLU had initially approached the Court on behalf of a mother and her then 6-year-old daughter, who were separated after arriving last November in the United States to seek asylum and escape religious persecution in the Democratic Republic of Congo. While they were reunited in March, the ACLU is now pursuing class-action claims on behalf of other immigrants.During the recent hearing, ACLU had asserted that neither the EO, nor the Fact Sheet eliminate the need for the requested injunction, highlighting the fact that there has neither been any reunification plan in place, nor any communication measures between separated parents and children.Court’s opinionAt the outset, the Court agreed with ACLU that the EO as well as the Fact Sheet did not render the injunction unnecessary, highlighting the fact that the EO was subject to various qualifications, for instance, allowing the government to separate a migrant parent from his or her child “where there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.” Similar issues were pointed out in the Fact Sheet to conclude that “neither of these directives eliminates the need for an injunction in this case”.The Court also noted that the practice of family separation was in action being employed before the zero-tolerance policy was announced as well, and that this had resulted in “casual, if not deliberate, separation of families that lawfully present at the port of entry, not just those who cross into the country illegally”. In addition, it took note of the fact that the practice was being implemented without any effective system or procedure for (1) tracking the children after they were separated from their parents, (2) enabling communication between the parents and their children after separation, and (3) reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence.It then opined that the context and circumstances in which the practice of family separation was being implemented supported the finding that the plaintiffs have a likelihood of success on their claim that the practice violates the parents’ substantive due process rights to family integrity under the Fifth Amendment to the United States Constitution.The Court also concluded that the Plaintiffs are likely to suffer irreparable harm in the absence of an injunction, asserting that separation of a parent from his or her child constitutes irreparable harm. The balance of equities, it further noted, rests in their favour as well, weighing the absence of harm to the Government against the harms to the Plaintiffs. The factor of public interest was also found to be in favour of the Plaintiffs, with the Court observing,“This case involves two important public interests: the interest in enforcing the country’s criminal and immigration laws and the constitutional liberty interest “of parents in the care, custody, and control of their children[,]” which “is perhaps the oldest of the fundamental liberty interests recognised by” the Supreme Court… Both of these interests are valid and important, and both can be served by the issuance of an injunction in this case.As stated, the public’s interest in enforcing the criminal and immigration laws of this country would be unaffected by issuance of the...

Reunite Migrant Families Within 30 days: US District Court Stays Trump’s Family Separation Policy [Read Order]

Apoorva Mandhani

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