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Fri Feb 22, 2019, 05:25 PM

Judge Appears Set to Demand Full "Accounting" of Thousands More Separated Kids

Judge Appears Set to Demand Full “Accounting” of Thousands More Separated Kids

By Jeremy Stahl
Feb 22, 2019
3:04 PM

On Thursday, Judge Dana Sabraw held what could be the most consequential hearing in months in the family separation case Ms. L v. ICE, which has resulted in the identification and reunification of more than 2,000 separated children with their parents. The new developments could lead to the identification of thousands more separated children, or a bitter court fight over whether the Trump administration has the responsibility to account for them.

An inspector general’s report last month revealed that potentially thousands more children were separated from their families than previously acknowledged by the government. The American Civil Liberties Union, which is leading the lawsuit, quickly asked for the government to identify those separated children for possible reunification. The court’s initial reunification order has been applied only to children who were in Office of Refugee Resettlement care at the time Sabraw’s preliminary injunction was sent down on June 26, 2018. The government filed a response to the ACLU’s motion saying that it would be too difficult to find the additional kids it separated, and that reunification would be potentially traumatic because it would involve ICE raiding homes where these children have been placed.

The government seems to have dropped that latest argument, acceding to the fact that reuniting children could be done—as it has been throughout the course of the lawsuit—with the help of NGOs.

Lawyers for the Department of Justice, though, continued on Thursday to press their case that the government does not have an obligation to identify those families and that the task would be too onerous. They even seemed to indicate that, should Judge Sabraw find a government obligation to account for all illegally separated children, as he seemed inclined to do, they would drop their previous cooperation and fight the ruling.

“It’s a real change of course, respectfully your honor, to do all that [work to reunite families], to put all that commitment in, to hold a potential appeal in abeyance, to grant all sorts of things that we wouldn’t normally grant,” said Deputy Assistant Attorney General Scott Stewart. “I’m just not sure that we can keep going that way.”

During Thursday’s hearing, Sabraw seemed poised to accept the ACLU’s motion. As the ACLU argued in its filings in the case, the government’s position is illogical. The DOJ argues that the government only has a responsibility to identify separated children who were in ORR custody on the date of Sabraw’s court ruling, June 26, because the remedy the court ordered—reunification—would present different challenges for the other group. The ACLU argued in its own filings that “this confuses the question of relief with the question of liability. The pre-June 26 children suffered the same harm from the same illegal government policy.”



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