U.S. District Court Judge Dana Sabraw, based in San Diego, issued a preliminary injunction on Tuesday night requiring that nearly all children younger than 5 be returned to their parents within 14 days and that older children be returned within 30 days. | Patrick Semansky/AP Photo Federal judge orders Trump administration to reunite migrant families

A federal judge on Tuesday ordered the federal government to reunite migrant parents with children taken from them under the Trump administration’s family separation policy.

U.S. District Court Judge Dana Sabraw, based in San Diego, issued a preliminary injunction on Tuesday night requiring that nearly all children younger than 5 be returned to their parents within 14 days and that older children be returned within 30 days.


Blasting the Trump administration for what he called “a chaotic circumstance of the Government’s own making,” Sabraw said it was a “startling reality” that no adequate planning had been done before officials embarked on a policy to separate children from parents kept in immigration custody or referred for criminal prosecution. The practice has led to more than 2,300 children being separated from their parents or other family members.

“The government readily keeps track of personal property of detainees in criminal and immigration proceedings,” Sabraw wrote in his 24-page order. “Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainee’s release, at all levels — state and federal, citizen and alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process.”

The injunction was issued over the objections of the Trump administration, which had asked Sabraw to hold off issuing any such mandate while agencies worked to implement the executive order President Donald Trump issued last week purporting to rescind the family separation policy.

The preliminary injunction also blocks deporting parents who have been separated from their children “unless the Class Member affirmatively, knowingly, and voluntarily declines to be reunited with the child prior to the Class Member’s deportation, or there is a determination that the parent is unfit or presents a danger to the child.” The judge also prohibited future family separations, with limited exceptions.

A Justice Department spokesman declined to comment Tuesday night on the judge’s order.

Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, argued the case. “This ruling is an enormous victory for parents and children who thought they may never see each other again,” he said on Tuesday night. “Tears will be flowing in detention centers across the country when the families learn they will be reunited.”

Sabraw, an appointee of President George W. Bush, acted in response to an American Civil Liberties Union lawsuit filed in February over the alleged separation of an asylum-seeker from the Democratic Republic of the Congo from her 7-year-old child. They were reunited in March, but the ACLU added another plaintiff: a Brazilian woman who was separated from her 14-year-old son while she was prosecuted for crossing the border from Mexico illegally.

The civil liberties group also asked the judge to treat the case as a class action on behalf of other migrants separated from their families. Sabraw agreed to the class-action status in a separate ruling Tuesday night.

In his decision ordering family reunification, Sabraw said the Trump administration policy intruded on a constitutional due process right not to have one’s family arbitrarily separated.

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“The right to family integrity still applies here,” the judge wrote. “The context of the family separation practice at issue here, namely an international border, does not render the practice constitutional, nor does it shield the practice from judicial review.”

Sabraw also said the government has an affirmative duty to reunite parents with their children, not simply to hand out toll-free numbers that immigrants can call to try to locate their kids, who are typically in the legal custody of the Department of Health and Human Services’ Office of Refugee Resettlement, or ORR.

“These situations confirm what the Government has already stated: it is not affirmatively reuniting parents like Plaintiffs and their fellow class members for purposes other than removal,” the judge wrote. “Outside of deportation, the onus is on the parents, who, for the most part, are themselves in either criminal or immigration proceedings, to contact ORR or otherwise search for their children and make application for reunification. … However, this reunification procedure was not designed to deal with the present circumstances.”

The “zero tolerance” border strategy has generated widespread opposition in recent weeks. Trump issued a hastily drafted executive order on June 20 that sought to detain children indefinitely alongside their parents — a response to the fallout from his own administration’s enforcement policy.

The order immediately ran into a tangle of logistical problems, including the 1997 Flores settlement agreement, which calls for children to be released to the “least restrictive setting” and limits their time in detention to a maximum of 20 days.

The Justice Department last week asked for a modification to the agreement that would allow it to hold children alongside their parents, but the Obama-appointed judge overseeing the case isn’t expected to treat the request favorably.

The administration also faces a crunch for family detention space. As of June 20, more than three-quarters of the federal government’s 3,326 beds family detention beds were filled.

The U.S. Customs and Border Protection commissioner, Kevin McAleenan, told reporters in South Texas on Monday that his agency would temporarily halt referring parents traveling with children for prosecution, except in instances where the adult had a criminal history or presented a danger to the child.

Health and Human Services Secretary Alex Azar said during an unrelated congressional hearing on Tuesday that parents held in immigration detention centers could not be reunited with their children unless they dropped any asylum claims and agreed to be deported, or unless federal law was changed.

