A San Diego federal judge overseeing the family separation litigation on Wednesday found that 11 parents who were deported without their children were unlawfully removed and therefore should be allowed to return to the U.S. to pursue asylum.

U.S. District Judge Dana Sabraw made a case-by-case determination based on hundreds of pages of immigration documents and declarations, looking for evidence that they’d expressed a fear of returning to their home countries but were denied asylum procedures as a product of being separated from their children.

One migrant described being so distraught about the whereabouts of her son that her face became paralyzed for two to three days, according to her attorneys. After being told her asylum process would likely cause her to be separated for over a year, she decided to withdraw her application.

Another father said he’d been pressured by two immigration officials to drop his asylum claim early on. The officers told him his son would be adopted to an American family, he said.


“I felt crushed with fear and (my son) began to cry. Fearing the permanent loss of (my son) in a foreign land to an unknown American family was too much for me to bear,” he said in a declaration. “As a result, I was forced to sign the paper in front of me that I could not read, and agreed to be deported in order not to lose my 8-year-old son to adoption.”

Once he signed the documents, he was still separated from his son and deported.

Sabraw noted that three others were removed in violation of one of his own court orders — a July 16, 2018, stay of all removals of class members.

The 11 parents represent a fraction of the 471 mothers and fathers who were separated from their children under the Trump administration’s zero tolerance policy last year and then deported.


Thousands of other parents were also separated, but because they were present in the U.S. when Sabraw issued a landmark injunction on June 26, 2018, they are allowed a second shot at asylum under a settlement agreement.

The settlement does not extend to all deported class members, but does leave the door open for “rare and unusual” requests on a case-by-case basis.

“As traumatic and unlawful as the separations may have been, the Court declines to find that separation of the family — standing alone — renders the subsequent removal of the parent unlawful,” Sabraw wrote in his order. “Rather, to be entitled to the relief sought here, the circumstances surrounding the separation of each parent from his or her child must have caused the deportation or removal to be unlawful, e.g., the separation must have affected the voluntariness of the parent’s decisions in the immigration proceedings, or there must have been a statutory or regulatory violation in the immigration process independent of the separation, e.g., a failure to provide a credible fear interview in the face of a credible fear claim.”

In his examination, he denied similar requests by seven other parents, determining they did not present enough evidence to show their removals were unlawful.


The American Civil Liberties Union, which is representing the parents, had originally petitioned to return three additional parents but their cases have been otherwise adjudicated. In one of those cases, the government recently agreed to return a parent to the U.S. because he had been removed without a credible fear interview in violation of law, according to the order.