News & Politics

The Family Separation Court Injunction Isn’t What You Think

Protesters demonstrate outside City Hall in Portland, Ore., on June 24, 2018, to speak out against President Trump's immigration policies and Immigration and Customs Enforcement (ICE). (Photo by Alex Milan Tracy/Sipa USA)(Sipa via AP Images)

On Tuesday, a Bush-appointed judge in the Southern District of California issued an injunction requiring government agencies to reunite immigrant children with their parents who have been detained for immigration violations or are going through asylum proceedings.

While the press is making much about the ruling, the timeline reveals how public sentiment ginned up by media reports has distorted this issue.

Let’s begin with a memorandum from Attorney General Jeff Sessions to prosecutors along the Southwest border delivered on April 11, 2017, just a few months after President Trump took office. In that memorandum, titled “Renewed Commitment to Criminal Immigration Enforcement,” Sessions directed prosecutors to prioritize certain criminal immigration offenses and to develop guidelines for prosecuting those offenses.

With this new focus on these cases, resources would need to be properly obtained and allocated, something U.S. District Attorney’s offices can request of the federal government. They could also, as mentioned in Session’s memo, seek help from district courts to handle federal cases, which has happened. Part and parcel of the prioritization of these criminal offenses would be more resources for detaining immigrants, which, of course, requires more money to the federal agencies handling the caseload.

Despite this need for more resources, opponents of Sessions’ memo opposed an increase of the Department of Homeland Security’s budget to pay for more “border militarization, expand private prisons for immigrants, and exponentially grow DHS’s deportation force.” In November 2017, the ACLU of New Mexico sought to fight Trump’s priority of enforcement immigration law by signing a petition to block monies to pay for more resources, essentially calling for less money to be applied to housing for detained illegal immigrants and their children.

During this period, immigrant families continued to cross the border of the United States, some as asylum seekers, many others as drug smugglers and human traffickers. In the summer and fall of 2017, the plaintiffs in the class action lawsuit, which led U.S. District Judge Dana Sabraw to issue an injunction in June 2018 to stop family separations, were arrested at the border and separated from their children — a practice of former administrations when they chose to enforce the law. Trump’s new policy did not change the law, only the enforcement of it, which is the constitutional duty of the executive branch.

According to DHS statistics, the zero-tolerance policy of the Trump administration has led to 17 percent of children being held by social services, while the other 83 percent are unaccompanied minors. Most of the children held are quickly released to relatives, guardians, or another parent. In the cases of the plaintiffs whose lawsuits led to the recent injunction, they were separated from their children for longer periods, events that occurred before Sessions’ announcement of a zero-tolerance policy in April 2018.

The first woman was from the Congo, and she entered the United States on November 1 at a port of entry. While detained together for a few days, she and her daughter were later separated while the mother sought asylum and authorities determined her legal status. They were separated for four months and reunited after a DNA test confirmed she was the child’s mother.

The second woman was from Brazil, and she arrived at the U.S. border between ports of entry — an illegal act. Her son was taken from her when she was charged, and she ended up serving 25 days in jail for violation of immigration law. After that, she underwent asylum proceedings that extended for five months — all the while separated from her son and speaking with him only “a handful of times.”

The class action lawsuit against the government for separating parents from their children was filed on February 26, 2018, before Sessions announced the zero-tolerance policy, though his memorandum to prioritize certain immigration offenses was in place.

Both cases are heartbreaking, and DHS Secretary Kirstjen Nielsen has said the separation lasted far too long. It is not surprising, therefore, that Judge Sabraw ruled on June 6, 2018, that the two women had a legitimate complaint that the government had violated their due process and right to family integrity. The judge stated that unless the parents are a threat to the children, the family should stay together. This, however, was not a death knell for the enforcement of immigration law as some in the press have claimed.

In his ruling on a motion to dismiss, Judge Sabraw clarified the intentions of the lawsuit.

In determining whether the right to family integrity encompasses the circumstances alleged here, it is important to note what Plaintiffs do not challenge. They do not challenge the Government’s initial separation of parent and child when the parent is arrested for violating the nation’s criminal laws. Nor do Plaintiffs challenge the Government’s decision to separate families when there are legitimate questions regarding parentage, fitness, or danger to the child.

Nor do they challenge the Government’s powers to deport or detain aliens. What Plaintiffs challenge is the Government’s separation of migrant parents and their minor children when both are held in immigration detention and when there has been no showing the parent is unfit or poses a danger to the child. Plaintiffs assert separation of parents and minor children under such circumstances violates their due process rights.

Not long before the judge’s order on the motion to dismiss the case, Sessions issued a memo for prosecutors along the border that changed prioritization to zero tolerance. The reason for this decision was increased activity by illegal immigrants to “alter their tactics to take advantage of weak points.” This, Sessions said, “means we must effectively respond with smart changes also.”

“The recent increase in aliens illegally crossing our Southwest Border requires an updated approach,” Sessions wrote on April 6, 2018. In response to this issue of increased illegal activity along the U.S. border, the attorney general directed the U.S. Attorney’s Office in that region “to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a). This zero-tolerance policy shall supersede any existing policies.”

Section 8 U.S. Code 1325(a) cited by Sessions: (a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts.

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

Anticipating the increase in cases due to slack enforcement under the previous administration, Sessions told the U.S. Attorney’s office along the Southwest border to identify and request any additional resources it needs to prosecute the law. “Keep us informed, and don’t hesitate to give us suggestions for improvement,” Sessions wrote. “Remember, our goal is not simply more cases. It is to end the illegality in our immigration system.”

This announcement led to a deluge of press coverage about the separation of families at the border. Though the number of separated families was still a small percentage, the media made it seem as if hundreds of thousands of children were being detained in concentration camps in brutal and squalid conditions.

The administration explained that the separations were the inevitable consequence of charging parents with the crime of violating immigration law or determining whether the parents were actually the parents of the children and whether they were actually asylum seekers, but the press continued to beat the drum with shameless Nazi references. This, despite evidence that the children were well cared for.

Recognizing that separating children from parents is still a personally devastating reality in this situation, President Trump issued an executive order on June 20, 2018, to bring some resolution to the matter and compel Congress to debate and change the law. The EO maintained the necessity of enforcing section 1325 (a) of title 8, U.S. code, and the commitment of the administration to enforce the law until Congress directs otherwise.

Regarding the separation of families, the EO ordered that DHS will “maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.” DHS, however, won’t detain the family together if there is a risk to the child’s welfare. DHS will put families in existing housing and construct any further housing that is needed. The families will be well cared for during their detainment, and their cases should be prioritized to speed up the process.

The press still complained, recognizing conflicts with current law and the reality that catch-and-release into the United States would not be allowed under this administration. The media, therefore, continued to push the contrived narrative that this was a crisis of unprecedented proportions.

Six days later, Judge Sabraw, witnessing the upheaval in the press over this issue, ruled in favor of a preliminary injunction. He was compelled, he said, because the “situation has reached a crisis level.” He cited, however, reactions to the separations and not the number or nature of the separations themselves as evidence of that crisis.

The news media is saturated with stories of immigrant families being separated at the border. People are protesting. Elected officials are weighing in. Congress is threatening action. Seventeen states have now filed a complaint against the Federal Government challenging the family separation practice … And the President has taken action.

Because of this “crisis,” Judge Sabraw ruled that unless the parent is unfit or a danger to the children, the government must reunify families with children under the age of five within 14 days of the entry of his order, and all other families must be reunited within 30 days. Communication between the family members who remain in custody must become regular. That contact by telephone must occur within 10 days.

Judge Sabraw firmly stated that this injunction would not have a negative impact on the government’s ability to enforce criminal and immigration laws. The injunction, like Trump’s EO, prevents the separation of parents from their children and orders their reunification. This means, as stated in the EO, that families will be detained together.

The government would remain free to enforce its criminal and immigration laws, and to exercise its discretion in matters of release and detention consistent with law. As stated, the public’s interest in enforcing the criminal and immigration laws of this country would be unaffected by issuance of the requested injunction. The Executive Branch is free to prosecute illegal border crossers and institute immigration proceedings against aliens, and would remain free to do so if an injunction were issued. Plaintiffs do not seek to enjoin the Executive Branch from carrying out its duties in that regard.

President Trump and Judge Sabraw seem to be in agreement. This injunction sets a timetable for reunification, adding to the EO, but it is not the smack-down immigration activists maintain. It is merely another reaction in a chain fastened to the immigration debate and the narrative that we have a crisis to address.

There is a crisis at the border, of course, but not the one presented in the press. We have a crisis of illegal immigration, but the administration is trying to deal with that by enforcing immigration laws. The crisis Judge Sabraw mentioned, however, is a crisis constructed in newsrooms and media sites across the nation. And the purpose of that crisis is to stop the executive branch from exercising its duties, to tar and feather Trump, malign him, and shackle him with public sentiment.