Over the past month, the Trump administration has begun to implement a policy that has reportedly led to the forced separation of hundreds of undocumented immigrant parents from their children after they’ve arrived together at the U.S. border. This followed reports that a pilot program of such a policy had been undertaken between July and November 2017. Democrats have argued that this apparent practice is cruel, heartless, and betrays our nation’s deepest values. The ACLU, meanwhile, has argued in court on behalf of separated immigrant families that such a practice would be—and is—blatantly unconstitutional.

On Wednesday, Dana Sabraw, a federal district court judge in California, issued a stinging rebuke to the government’s request to dismiss the ACLU’s claim under the due process clause of the Fifth Amendment. He also indicated in his opinion that the government would likely be found to be in violation of the due process rights of these immigrant families. Judge Sabraw resoundingly rejected the argument that the Due Process clause of the Fifth Amendment had not been violated. (Sabraw, a George W. Bush appointee, at the same time accepted the government’s motion to dismiss the ACLU’s statutory grounds arguments.)

As I wrote earlier this week, the constitutional case here is clear. While this is a ruling on a motion to dismiss and not a final ruling by any means, Sabraw clearly found that the Fifth Amendment claims ought to be adjudicated.



From Sabraw’s ruling (emphasis added):

For Plaintiffs, the government actors responsible for the “care and custody” of migrant children have, in fact, become their persecutors. … These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the “exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective[.]” Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to family integrity. Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim is denied.

As Sabraw noted, he is still poised to rule on whether or not separated families will be certified as part of the ACLU’s requested class action lawsuit, and to determine if a preliminary injunction will be issued to halt a practice he describes as “brutal, offensive, and [failing] to comport with traditional notions of fair play and decency.” In other words, the class action question is still open, but his view that such a practice is shockingly cruel for constitutional purposes, does not seem to be in doubt.

The ACLU attorney who argued the case, Lee Gelernt, described the ruling to me as a powerful initial victory for his clients.

“This is an enormous ruling, there’s no question about it, because the major dispute between us and the government was whether there was a constitutional right [for] families … to remain together in these circumstances,” Gelernt told me.

The court has essentially said that the practice alleged in the suit—and reportedly taking place all across our border for the past month—is a gross violation of the U.S. Constitution. Now it has merely to determine whether the practice is actually taking place.

“The court could not have been clearer that on the facts alleged in the complaint, which are essentially indisputable, this policy is not only brutal but shocks the conscience in violation of fundamental constitutional principles,” Gelernt said.

As Gelernt notes, the government has yet to really call into question the factual merits of the two parents who have already been certified as part of the suit. The first plaintiff is a Congolese woman, Ms. L., who sought asylum at a U.S. port of entry. She had her six-year-old taken from her, purportedly because the government doubted her parentage, and only had her daughter returned four months later after the government was made to conduct a DNA test following the issuance of the suit.

The second plaintiff is a Brazilian woman, Ms. C, who crossed the border illegally with her child. She served a 25-day sentence for misdemeanor illegal entry, had a hearing that ruled her to have a credible asylum claim, and is awaiting the adjudication of that claim. Even after she served her time, Ms. C’s 14-year-old was not returned to her. Instead, they have been kept separately as they await their asylum request.

Crucially, the judge ruled that Ms. L and Ms. C had a similar constitutional claim, despite the government’s justification of Ms. C’s indefinite separation from her child on the grounds that she had committed misdemeanor illegal entry.

According to the allegations in the Amended Complaint, Ms. L. did everything right. She and her child presented at the port of entry and requested asylum. She passed a credible fear screening interview, was taken out of expedited removal proceedings, and placed in removal proceedings before an [immigration judge] to pursue her asylum claim. Ms. C., by contrast, did not do everything right. She committed a crime by entering the United States illegally, and was prosecuted and imprisoned for her transgression: 25 days in custody for misdemeanor [illegal entry]. However, having served her sentence, Ms. C. was then returned to ICE detention to pursue her asylum claim, as she too had passed a credible fear screening. Ms. C., therefore, is on equal footing with Ms. L. for purposes of pursuing her due process claim.

The ACLU pointed to affidavits of several similarly situated parents, who described in chilling detail the trauma they claimed to be experiencing at the hands of the government and how their children were crying for their parents as the government ripped them away.

The government had argued that Ms. L’s claim was now moot, because the government had returned her child after the court-mandated DNA test. Cynically, the government also claimed that its return of Ms. L’s child had nothing to do with her lawsuit. The court rejected this out of hand. “Defendants also have failed to offer any evidence to explain why DNA testing of Ms. L. and [her child] was not completed during the four months that [they] were detained and during which time Ms. L. consistently maintained parentage, but occurred only after the Court ordered it,” Sabraw wrote. “Because Defendants have not shown that Ms. L. was released from detention and reunited with her daughter for reasons other than this litigation, the Court finds … Ms. L.’s claims are not moot.”

Importantly, the judge similarly rejected the government’s citation of a First Circuit case called Aguilar v. United States Immigration and Customs Enforcement Division of Homeland Security for the proposition that these families could be lawfully separated without any substantive due process violation.

“[U]nlike Plaintiffs in this case, none of the plaintiffs in Aguilar were detained with their children,” he wrote.

The judge noted in his ruling that he had not yet determined whether a nationwide practice of separating families at the border in order to deter undocumented immigration had been put into effect. But he clearly found that such a policy would be a betrayal of our Constitution. The government has contended in court that such a policy does not exist, but Chief of Staff John Kelly has stated that such a policy was meant for that specific purpose and Attorney General Jeff Sessions has stated “If you don’t want your child separated, then don’t bring them across the border illegally.”

As Sabraw noted, Ms. L’s child was actually brought here legally—as were several other similarly situated parents according to the ACLU’s affidavits—in accordance with our country’s international agreements on asylum consideration. “Arriving on United States soil with one’s minor child to pursue relief extended by U.S. law—as well as international law to which the United States has acceded—calls out for careful assessment of how governmental actors treat such people and whether constitutional protections should apply,” he wrote. And as Sen. Dianne Feinstein noted last week in proposing a law to end the practice, the government has acknowledged an enormous uptick in child separations just as it has announced a new “zero tolerance” immigration measure of prosecuting anyone who comes over the border illegally, including parents with minor children.

Again, right now, there are hundreds, if not thousands of similarly situated families. As far as this judge is concerned they may have their day in court. Depending on how Judge Sabraw rules on the outstanding questions, they are also now poised to get relief from what he has deemed to apparently be a blatant and “brutal” constitutional violation.