Terry H. Schwadron
Aug. 6, 2018
Two of President Trump’s immigration initiatives were rejected last Friday by the courts, surely fueling both some relief that there is common sense somewhere in the system and more vitriol from the administration for judges who are not hand-picked.
Federal district court judges ruled that it is the Trump administration that has the sole burden to locate migrant parents who had been separated from their children during immigration procedures on the southern border and that the administration must re-start the DACA (Deferred Action for Childhood Arrivals) program that it had ordered terminated.
In a pretty nutty court proceeding last week, the Department of Justice had argued in a brief that the ACLU, which filed suit on behalf of separated families, should take the responsibility for finding parentswho have since been deported back to Mexico or Central American countries to facilitate reunion with their children, using its “considerable resources” through supporting organizations.
Together, these decisions by the courts arethe latest legal blows against Trump’s moves against limiting immigration. DACA was an Obama-era program, which offered deportation relief to undocumented immigrants brought to the United States as children.
U.S. District Judge Dana Sabraw, a George W. Bush appointee to the bench in California, disagreed, and chided the government, saying that “The government has the sole burden and responsibility and obligation to make this happen.”
To me, at least, this argument seemed pretty cheeky from a government that had intervened — sometimes in legal asylum request proceedings — to separate the children from parents. The administration has been squirrely through these last months about taking responsibility for start, never really owning up to the obvious policy statement that the U.S. government was adopting the separation plan to keep down the number of recently unwanted border crossings.
The judge added, “The reality is that for every parent who is not located, there will be a permanently orphaned child. And that is 100 percent the responsibility of the administration.”
The Justice Department argued in a court filing Thursday that the American Civil Liberties Union, which represents plaintiffs in the case, should use its “considerable resources” to locate the parents. The reunification process is an ongoing effort set in motion by the judge’s June 25 order that required the administration to join families that had been split apart at the border.
The Justice Department said in a court filing Thursday that 1,979 children had been reunified with parents or sponsors, but 572 children had parents who were either deemed ineligible for reunification or “not available for discharge at this time.”
Of the remaining separated children in federal custody, 410 had a parent outside the U.S., likely as a result of deportation or voluntary departure. Another 68 children had parents who were released into the U.S., but hadn’t been contacted yet. In the cases of 15 children, the parents’ locations remained “under case file review.” Of the deported parents, only 12 or 13 appeared to have been located, according to the court filing.
The federal judge told the Trump administration to develop a plan to track down the missing parents and appoint an official to oversee the process.
The judge also ordered the ACLU to come up with its own reunification plan that explains how it will use information provided by the government to assist reunification efforts. The civil liberties group should designate the lead attorney or nongovernmental organization to spearhead the effort, he said.
Meanwhile, in Washington, U.S. District Judge John Bates ordered the Trump administration to restart in full the Deferred Action for Childhood Arrivals program. The judge denied a Justice Department motion to reconsider an earlier decision, saying there were still deficiencies in the administration’s rationale for rescinding DACA.
Bates, another George W. Bush appointee, said, “The court has already once given DHS the opportunity to remedy these deficiencies — either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review,” said Bates, “So it will not do so again.” He threatened to vacate the memo ending DACA — and thereby restore the program in full — if Trump officials could not present an adequate reason for ending it.
It sounded as if the government’s argument, a memo issued by Homeland Security Secretary Kirstjen Nielsen, was simply legally inadequate. Bates said the Nielsen memo, like Duke’s before it, “offers nothing even remotely approaching a considered legal assessment that this court could subject to judicial review.”
The judge made clear that he was not against ending DACA, if the government could provide a good reason.
More than 700,000 undocumented immigrants are enrolled in the DACA program. If Friday’s ruling goes into effect later this month, the administration will be required to accept new applications from people who meet DACA’s eligibility requirements.
Apart from all else, the rulings are a reminder that we need a strong, independent judiciary as the Trump administration widens its campaign at disruption of most existing governmental programs.