Published 6:58 PM EDT Oct 16, 2018
The legal battle between immigration advocates and the Trump administration over a policy that separated thousands of families apprehended along the U.S.-Mexico border last summer flared up in a San Diego courtroom on Tuesday as the two sides struggle to wrap up the complicated saga.
It's been nearly four months since U.S. District Judge Dana Sabraw ordered the administration to reunify roughly 2,600 families that were separated under President Donald Trump's "zero-tolerance" policy. The administration has reunited more than 2,300 of those children with their parents or other approved sponsors, drawing the praise of Sabraw.
But the two sides remain at odds over the 245 minors who still remain in government custody. Lawyers representing the separated families also say the federal government is slow-walking an agreed-upon process that would allow hundreds of the families to get a second chance to apply for asylum.
During a court hearing last month, the two sides tentatively agreed on a settlement that would allow hundreds of families to reapply for asylum since their first interviews were conducted while the families were separated. Sabraw encouraged both sides to begin that process as they put the finishing touches on the final settlement.
But Justin Bernick, an attorney with Hogan Lovells who represents some of the families, said the government has not followed through, accusing them of "reneging on those promises" in an effort to exhaust more families, convince them to give up on their asylum claims and accept a deportation back to their home country.
"The folks who are sitting in detention now could be there for another 60 days, two months waiting for this to wind through," Bernick said. "This is inordinately coercive."
Department of Justice attorney Scott Stewart fought back, insisting that the government is moving as quickly as it can, but making clear that it needed to have a finalized settlement to ensure that the separated families won't continue suing the administration over and over if they are denied asylum and ordered to be deported.
"The finality and the class-wide resolution are key...to the government," Stewart said. "Yes, we do have an interest in moving forward, especially with detained folks. But we also have an obligation and an interest for all to respect the process."
Sabraw said he issue a ruling soon on the disagreement. He scheduled another court hearing for Nov. 9, where he hopes the two sides can announce that they are done, or nearly done, with the entire process.
"It appears that we're getting close to the end," he said.
As that legal process crawls to its conclusion, President Donald Trump is considering a new immigration enforcement plan that would lead to a new wave of family separations, one that his administration believes could survive legal challenges.
Federal officials are restricted by U.S. law and a 1997 court settlement that limits the amount of time that minors can be held in immigration detention to 20 days. The Trump administration is considering a plan that would give migrant families an option: stay together indefinitely in court-approved family detention centers as they await their court hearings, or allow the child to be released while the parent is transferred to an adult detention center.
On Saturday, Trump confirmed that possibility, saying it was necessary to deter immigrants from trying to enter the U.S.
"If they feel there will be separation, they don't come," Trump said.
Here's a breakdown of the numbers showing where the arduous family reunification process stands, based on court filings submitted by the Department of Justice and lawyers representing the families, led by the ACLU. Note: The data does not add up because some categories overlap.
2,654: Total number of children who may have been separated from their parents.
2,070: Children reunited with parent.
293: Children released to other sponsors or released from custody after turning 18.
245: Minors still in government custody.
175: Parents who were deported prior to reunification. More than two-thirds have decided to let their children remain in the U.S. to fight for asylum.
46: Government determined child was not separated from parent.