A federal judge on Friday ordered the Trump administration to turn over a list of very young children who may have been separated from parents at the U.S.-Mexico border.
U.S. District Court Judge Dana Sabraw told a Justice Department attorney to provide by 5 p.m. PDT Saturday a tally of the roughly 100 children under age 5 who were split apart from adults at the border.
“What I’m expecting is a lot of work over the weekend,” he said during a meeting between parties in a lawsuit over family separations.
The Trump administration faces a Tuesday deadline – imposed by Sabraw last week – to reunite the young children with their parents. The administration contends it needs more time to determine which children have been separated from parents and to perform adequate security checks to ensure the safety of the child.
On Friday, Sabraw ordered the Justice Department to supply a preliminary list of young children who could possibly qualify for reunification, along with any explanation of obstacles to reunification.
The Trump administration has “mapped” 86 parents to 83 children under age 5 who remain in the custody of the Office of Refugee Resettlement, Justice Department attorney Sarah Fabian said during the court meeting Friday.
Of the 86 mapped parents, 46 remain in federal immigration detention, 19 have been deported, 19 have been released, and two have a criminal history that could potentially disqualify them from reunification, Fabian said.
It isn’t clear how much the federal government knows about the whereabouts of “unmapped” parents for nearly 20 children under 5.
Lee Gelernt, an attorney with the American Civil Liberties Union representing separated parents in the litigation, pressed Friday for the administration to provide names of all children and parents who may have been separated. With that information, he said, the ACLU and other interested parties could aid the reunification process.
The plaintiffs are “completely in the dark,” he said. “The government holds all the information.”
Under Sabraw’s order, the administration must unify all separated families by July 26–a deadline it won’t likely meet. HHS Secretary Alex Azar said Thursday that the total number of children split apart from parents at the border was less than 3,000, but he did not supply an exact figure.
The first task, however, will be to reunite the youngest of migrant children–something the administration almost certainly won’t achieve by Tuesday. The judge said that both parties in the case will confer Monday about how to proceed.
In a filing submitted to the San Diego-based judge shortly before midnight Thursday Pacific Time, Justice Department attorneys said authorities are using DNA testing to try to confirm “parentage” of children separated as a result of policies the administration implemented earlier this year. However, they said the results are not always quick or “conclusive.”
“Given the possibility of false claims of parentage, confirming parentage is critical to ensure that children are returned to their parents, not to potential traffickers,” Justice Department lawyers wrote. “The Government … seeks clarification that in cases where parentage cannot be confirmed quickly, HHS will not be in violation of the Court’s order if reunification occurs outside of the timelines provided by the Court.”
The Justice Department did not ask for any specific extension, saying only that the government could “prepare a proposal for an alternative timeline.”
When pressed by Sabraw Friday about whether the administration planned to appeal his reunification order, Fabian declined to commit. “That is a decision entirely within the purview of the solicitor general,” she said.
The DOJ filing Thursday said the government may need to seek “additional clarification or relief” from the order.
The Trump administration’s “zero tolerance” border enforcement strategy triggered thousands of family separations in recent months. President Donald Trump – besieged by opposition to the policy — issued a June 20 executive order that aimed to keep families together in detention, but the directive was soon dwarfed by Sabraw’s court order and its demand to reconnect families.
The administration has struggled to return as many as 3,000 children to their parents, some of whom remain in immigration custody and some who have already been released or deported.
The Health and Human Services Department has scrambled in recent days to devise a plan to reunite families, but as of earlier this week, staffers had little to no guidance on how to proceed with the court-ordered reunifications.
The department executed a contract with BCFS Health and Human Services, a San Antonio-based non-profit umbrella group, to deploy 100 case managers to work toward reunifications, as well as 40 staffers for logistical and administrative support, according to the court filing.
BCFS maintains an active contract with the HHS emergency response team with a potential to reach $13 million that runs through July 14, according to a websitethat tracks federal spending.
The staffing boost comes as HHS continues to grapple with the basic question of how many separated children remain in its custody.
Over the weekend, refugee office staffers manually reviewed the files of the nearly 12,000 children in its custody to determine which children may have been taken away from adults at the border.
In addition, HHS called for grantees that operate the department’s 110 shelters nationwide to identify separated children in their care.
“The results of both the manual review and the grantee certifications are undergoing validation,” Jonathan White, a deputy director with the Office of Refugee Resettlement, said in a related court declaration Thursday.
Whether HHS will attempt to reunite children who have been released already to a sponsor remains unclear.
In a letter sent Friday, six Democratic governors said they had learned HHS considered any placement of a child to amount to a reunification — even if the sponsor wasn’t the parent from whom the child was separated.
The letter references a June 29 meeting where Trump administration officials reportedly said that a successful reunification would include placement with a family member in the U.S., a family member in the child’s home country or in a long-term foster care setting.
Reunifying parents and children under the judge’s timeline would also require modifying security procedures, but ORR hasn’t taken some of those steps yet, according to Thursday’s court filing.
The refugee office maintains a range of processes to place unaccompanied children with a sponsor in the U.S., but such checks, which seek to confirm parentage and ensure a child won’t be placed in danger, would likely take longer than the imminent deadlines for reunifying families.
The administration has turned to DNA as the best method to verify parentage “given the compressed timeframe” ordered by the court, White said in his written declaration.
The shelters that maintain custody of children have swabbed their cheeks to collect DNA samples and HHS field teams have done the same with parents in federal immigration detention, according to the court document. The testing, conducted by a third-party laboratory service, takes nearly a week to complete for each parent and child.
White said HHS had “modified and expedited” its normal reunification process to comply with the court deadlines, but several security and background checks appeared likely to delay the release of children.
For instance, White said he doesn’t believe ORR can streamline background checks it performs on all household members of the parent and child’s prospective home.
“My opinion,” White said, “is that some relaxing of the Court’s deadlines is needed to allow HHS, on a case-by-case basis, to complete processes that HHS determines are necessary to make informed class membership determinations and to protect the welfare of the children presently in ORR custody.”