A federal judge asked pointed questions of the Trump administration and the American Civil Liberties Union on Friday over a proposed ban on U.S. immigration authorities separating parents from their children at the border.
The ACLU sued on behalf of a Congolese woman who was separated from her 7-year-old daughter for five months after seeking asylum at a San Diego border crossing and a Brazilian asylum-seeker who has been separated from her 14-year-old son since an arrest for illegal entry in August near the Texas-New Mexico border.
The ACLU has asked for a preliminary injunction to prohibit family separation unless the parent is determined to be unfit or poses a danger to the child. U.S. District Judge Dana Sabraw ended a nearly two-hour hearing by saying he would rule at a later date.
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Noting the administration's broad discretion to enforce immigration laws, Sabraw questioned why he should issue an order that would require families be detained together or freed on parole. "How can the court issue such a blanket and overarching order?" he asked Lee Gelernt, an attorney for the ACLU.
The judge, appointed by President George W. Bush in 2003, also pressed a government attorney to explain how the practice respects constitutional rights to due process and a 2008 law that says the government should act in the best interest of unaccompanied children.
Increasingly, people taken into custody at the border are asylum-seekers arriving as families or as children traveling alone. Department of Homeland Security Secretary Kirstjen Nielsen testified in Congress last week that the administration had no policy to separate parents from their children as a punitive or deterrent measure but that it happens when there is doubt about whether an adult may be a parent or when the child might be in danger.
When the judge asked the government attorney how many children have been separated, Sarah Fabian didn't dispute a report in The New York Times last month that there were about 700, including more than 100 younger than 4.
Fabian said she couldn't answer whether the numbers represent a shift under Trump because they have not been historically tracked. She said there were fewer than 2,700 beds at family detention centers nationwide. The Border Patrol arrested nearly 9,700 people who came as families from Mexico and another 5,500 were taken into custody at border crossings with Mexico.
In the lawsuit, a mother identified in court documents as Mrs. L claimed asylum at San Diego's San Ysidro border crossing on Nov. 1, 2017, and four days later she was separated from her daughter. The girl, then 6, was sent to a Chicago shelter overseen by the U.S. Health and Human Services Department's Office of Refugee Resettlement, while the mother was held at a San Diego immigration detention facility until March 6.
The administration says the Congolese woman had no documents and was unable to prove she was the girl's mother when she claimed asylum. U.S. authorities confirmed through DNA testing on March 12 that the woman was the girl's mother and the two were reunited.
The Brazilian woman, identified as Mrs. C, served nearly a month in jail after her Aug. 26, 2017 arrest for illegal entry near Santa Teresa, New Mexico, and then spent about six months in immigration detention. The government said in a court filing April 20 that it was seeking to reunify her with her son.