Trump administration says it may not meet deadline to reunite separated families

Alan Gomez | USA TODAY

The Trump administration argued in a court hearing Friday that it may not be able to fully comply with a federal judge's order to reunite nearly 3,000 children separated from their parents by the end of the month.

The administration must reunite about 100 children under age 5 by Tuesday, and all other minors by July 26. But government lawyers said there is too much work to do and too many questions about the judge's order to meet his strict deadlines.

During the hearing, Department of Justice lawyer Sarah Fabian said the government is stuck between the court's strict deadlines and legal requirements that children in government custody be released only into safe environments.

"There really has been a massive effort on the part of the government to get the resources in place on the ground to make reunification happen in accordance with the court’s order," Fabian said. But, "there's always going to be tension between a fast release and a safe release."

The request for more time came a day after Health and Human Services Secretary Alex Azar held a conference call where he assured reporters that the administration would reunite all the children that had been separated. Azar criticized the ruling, but vowed to meet the court-imposed deadlines.

"We will comply with the artificial deadlines established by the courts," he said Thursday.

On Friday, Fabian said the government is struggling to complete the time-consuming process of verifying the relationship between parents and children, locating parents who have been deported or released into the U.S., and ensuring that parents who have been found do not have a criminal record or pose a threat to their children.

U.S. District Judge Dana Sabraw, who issued the order to reunite the separated families, said he may extend his deadlines in extreme cases where parents have been deported or have a criminal background. But he said the government must push ahead not only to reunite the nearly 3,000 children covered by his order, but also to establish a system that can be used in future cases.

He urged the government to "do it in an efficient, quick manner, but of course never losing sight of the best interest of the child."

He gave the Justice Department until Saturday evening to produce a list of the 101 children under age 5 who must be reunited. The judge will hold another hearing on Monday to decide whether the government will get more time, or whether it must comply with his deadlines.

Lee Gelernt, an ACLU attorney leading the lawsuit, said an army of volunteers was standing by, ready to locate parents who have been deported or can't be located in the U.S. He said those volunteers — a combination of lawyers and immigrant rights organizations — will also help families with transportation, housing and meals when they're reunited with their children.

"The parents are going to have no money, they’re going to be put out on the street in Detroit or wherever," he said. "And we are prepared to make sure every one of those parents has someone there with them when they walk out."

More: Trump administration vows to reunite children with parents per judge's order

More: 4 things we don't know about family reunifications

In a series of court filings leading up to Friday's hearing, the government argued that it has been working nonstop to comply with Sabraw's order and provided explanations from Health and Human Services and Immigration and Customs Enforcement to lay out what they've done.

Calif. judge orders Immigrant families to be reunited within 30 days A judge in California on Tuesday ordered U.S. border authorities to reunite separated families within 30 days, setting a hard deadline in a process that has so far yielded uncertainty about when children might again see their parents.

Jonathan White, of the Office of the Assistant Secretary for Preparedness and Response at HHS, wrote that the agency has deployed nearly 300 personnel to serve as case managers and coordinators to speed up the reunification process.

Robert Guadian, acting deputy assistant director for ICE's Enforcement and Removal Operations, wrote that his agency has reassigned agents from other assignments, including fugitive operations, to the work of reunifying families. He said 19 of the agency's 26 field offices have been involved.

The two outlined a comprehensive, case-by-case analysis of all minors in custody due to immigration violations to determine if they fall under Sabraw's order. And, as Guadian explained, the first hurdle was the biggest.

Before Sabraw's order, the government did not have a list of children who had been separated from their parents before Trump's "zero tolerance" policy went into effect — or after. Guadian wrote that information was simply "not maintained as part of ICE's regular business practice," Guadian wrote.

That forced HHS to conduct a case-by-case review of all 11,800 minors in its custody to see which files included a mention of a family separation. Then, ICE followed up to determine exactly when and how the family was separated.

And then they had to sync those files up by hand because, as White explained, "DHS has different information systems, and those systems were not designed to neatly capture and readily share all of the data."

Further complicating the reunification process was the realization that all children's parents were not still in government custody. Some have been deported, and some have been released into the US on parole as they await hearings, and some haven't been located at all.

For example, HHS identified 101 children under age 5 who may need to be reunited with their parents under the judge's order. Fabian said the government has verified the parents of 83 of the children. Of those, 46 are in detention in federal facilities, 19 have been deported, 19 have been released into the U.S., and two have been determined to be risks to their children.

The government says the cases where they can't find the parents are the ones where it will be most difficult to fully comply with the judge's order.

"Some of the identified minors may have been separated prior to crossing the border, or there may be other factors that need to be explored that would not make their parents members of the class," White wrote.

More: Trump administration racing the clock to reunite 2,000 children with parents

A federal complaint filed Friday claims the government has made made matters worse by misplacing and, in some cases, destroying records of children separated from their parents.

Citizens for Responsibility and Ethics in Washington filed a complaint with the National Archives and Records Administration requesting an investigation into reports that officials at Homeland Security and Health and Human Services have purposefully destroyed records that showed parents were separated from their children. If there is no proof that a family was separated, the government would not be required to reunite them under the judge's order.

Citing a New York Times report, the advocacy group urged the government's official archivist to determine whether immigration agents willfully destroyed the records in an attempt to keep families separated.

"Rarely, if ever, has a potential violation of the (Federal Records Act) had such grave implications," read the complaint. "The reportedly destroyed records bear directly on the lives of thousands of immigrants seeking entry to our country, threatening the permanent separation of parents from their children."