On June 26, 2018, Judge Dana M. Sabraw, United States District Court for Southern California directed the Office of Refugee Resettlement, Department of Homeland Security, Immigration and Customs Enforcement (ICE) and Border Control to reunite the more than 2000 children that have been separated from their children at the U.S. border. The Judge said that the government must reunify separated parents:

• “with their minor children who are under age five (5) within fourteen (14) days of …this Order.”

• “must reunify all Class Members with their minor children age five (5) and over within thirty (30) days of the entry of this Order.”

• “must immediately take all steps necessary to facilitate regular communication between Class members and their children who remain in ORR custody, ORR foster care, or DHS custody. Within ten (10) days, [the government] must provide parents telephonic contact with their children if the parent is not already in contact with his or her child.”

Judge Sabraw was responding to a class action law suit filed nearly three months ago. The suit was based on the case of two mothers one from the Democratic Republic of the Congo and another from Brazil. Both were seeking asylum from persecution. In the first case, the mother citing religious persecution due to her Catholic faith, presented herself at the border along with her six-year-old daughter asking for refuge and the second mother had crossed the border with her 14-year-old son who sought asylum after crossing the border.  Both children were separated from the parent and sent hundreds of miles away to Illinois.  Both mothers had limited and sporadic contact with their children during the separation.  In both cases, the parents were helped by the legal action of this case.

The Judge said that the practice of separation was conducted without any system to track the children. He pointed out that the action was startling since the government does regularly track items such as money, important documents and even automobiles tracked and sorted and released once the person is released. He described how the case involved two important interests, the interest in enforcing the laws and the second, “the interest, ‘of parents in the care, custody, and control of their children,’ which is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court.”

In his sometimes-scathing decision Judge Sabraw, said, “without a determination that the parent is unfit or presents a danger to the child violate the parents’ substantive due process rights to family integrity under the Fifth Amendment to the United States Constitution.”

He went on to say, “…class members may be fleeing persecution and are entitled to careful consideration by government officials. Particularly so if they have credible fear of persecution. We are a country of laws, and of compassion.”

Shortly before this court ruling 17 states joined together to file a second legal assault on the President’s policies. In his ruling Judge Sabraw made note of the President’s Executive Order and found it lacking in detail and pointing out if failed to say anything about the reunification of children.

Judge Sabraw was nominated to the Southern District Court of California by President George W Bush in 2003. The law suit had been filed in early March and had been expanded in that month when the second mother’s case from Brazil was added. His decision came almost at the same time as another suit was filed by the District of Columbia and seventeen states: Washington, California, Maryland, Oregon, New Mexico, New Jersey, Iowa, Illinois, Minnesota, Rhode Island, New York, Vermont, North Carolina, Delaware, Massachusetts, Pennsylvania, Virginia and the District of Columbia that seeks to bar the Trump Administration from separating children from their parents.

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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