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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Thursday, June 21, 2018

Judge Set to Rule on Splitting Migrant Families

Wall Street Journal
By Jacob Gershman
June 20, 2018

A federal court could rule as early as this week on the American Civil Liberties Union’s request for an injunction to stop the practice of splitting up migrant parents and children seeking asylum at the U.S. southern border.

The ACLU is asking U.S. District Judge Dana Sabraw in San Diego for a court order that would require Homeland Security officials to keep detained parents and children together in family facilities unless the government can show that the parents are unfit or pose a danger to their kids. The judge is expected to also rule on the ACLU’s motion to pursue its claims more broadly as a class action.

Below is a snapshot of the legal issues in the case and their potential to shake up the raging debate in Washington. It isn’t clear how any new legislative proposals from Republican lawmakers, who were meeting with President Donald Trump on Tuesday, would affect the lawsuit.

1. What is the lawsuit challenging?

Since March, the ACLU has been seeking a nationwide injunction that would bar immigration authorities from separating migrant families without a good reason. The group accuses the Trump administration of separating families to deter border crossing and claims the practice is so brutal that it violates the due-process rights under the Constitution’s Fifth Amendment.

2. Who would be covered under an injunction?

For now, the ACLU isn’t contesting the prosecution of asylum seekers for illegal entry or even the separation of families during the brief time—sometimes as short as one or two days—when parents facing misdemeanor charges are in criminal custody. Rather, the ACLU is focusing on the alleged failure of the U.S. to reunite families.

One of the two named plaintiffs is a Brazilian mother apprehended at the border with her 14-year-old son. After serving a 25-day sentence, “Ms. C.” then spent five months in ICE detention in Texas, while her son was detained in Chicago at an Office of Refugee Resettlement facility. The mother reunited with her son in June, weeks after she was released from ICE, according to the plaintiffs.

The injunction would also cover parents arriving at a port of entry seeking asylum. Those parents aren’t criminally prosecuted but are housed in immigration facilities away from their children.

The other lead plaintiff is an undocumented Congolese woman identified as “Ms. L,” who arrived at the San Diego border in November with her 6-year-old daughter, who soon afterward was taken away “screaming and crying” to a shelter in Chicago while her mother sought asylum in California, the ACLU alleges.

In court papers, the government said it initially doubted the mother’s maternity, which was confirmed in a DNA test months after the separation. Judge Sabraw has said the Trump administration lawyers have failed to give any reason for why it took that long to do a DNA test.

3. What is the Trump administration’s defense?

Justice Department lawyers say the government’s immigration practices are constitutional and legal under the Trafficking Victims Protection and Reauthorization Act of 2008, a federal law providing protections to unaccompanied migrant minors.

Instances of family separations, the government says, have been made in consideration of “concerns about the safety of the individual child, efforts to interrupt smuggling operations on a broader scale, law enforcement interests in identifying and prosecuting criminals and detecting immigration fraud.”

At a hearing in May, a Justice Department lawyer denied that the separations are part of a Trump administration deterrence policy.

4. What is Judge Sabraw deciding?

As early as this week, the judge could rule on the ACLU’s motions to pursue the lawsuit more broadly as a class action and for a preliminary injunction. Judge Sabraw, appointed by President George W. Bush, refused to dismiss the lawsuit in a June 6 opinion, which said the government’s conduct “if true…is brutal, offensive, and fails to comport with traditional notions of fair play and decency.”

Left to be decided is whether the alleged grievances and treatment of migrants are similar enough to be bundled into a class action. If the judge declares the Trump administration is acting unconstitutionally, it isn’t clear what changes to the immigration process the Trump administration could be required to make.

For more information, go to: www.beverlyhillsimmigrationlaw.com

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