Homeland Security is preparing to release dozens of immigrant parents from custody this week in order to reunite them with their young children, blaming a judge’s deadline for forcing them to reimpose the catch-and-release policy the Trump administration was trying to end.
Government lawyers went to court last week to suggest they wouldn’t be able to meet the strict deadlines and go through all of the checks they usually do to make sure they’re releasing children to safe situations.
“There’s always going to be a tension between a faster release and a safe release,” said Sarah B. Fabian, a Justice Department lawyer.
But Judge Dana Sabraw refused to grant an extension on the deadline, saying his goal is to get as many families reunited as quickly as possible, and he wants the government to feel the pressure to do that.
He has set a deadline of Wednesday for children under five who were separated by immigration authorities at the border to be reunited with their parents.
Ms. Fabian said they have found 101 such children who are still in government custody who could fit into that category — and they’ve matched 86 parents to 83 of the children.
Of those 86, who are the subject of the lawsuit, 19 have already been deported and 19 have already been released into the U.S. Another two have been deemed unfit to take custody of their children because of kidnapping and rape or child cruelty histories.
That leaves 46 parents still in custody of U.S. Immigration and Customs Enforcement, and the government said it’s already preparing to release many of them in order to put them back together with their children.
“In many cases, ICE will release the parent on Alternatives to Detention (ATD) to enable reunification to be completed,” Robert Guadian, a top ICE official, said in a sworn declaration to Judge Sabraw on Friday.
That signals that catch-and-release — the policy the Trump administration had been trying to stop with its zero-tolerance policy — remains in effect as the government scrambles to deal with the aftermath of family separations.
Judge Sabraw said as far as he’s concerned, the government can hold those migrants as families if it wants.
“I want to be clear that I stand on the order and my comments here today don’t in any way suggest the attorney general must release or must detain, or when he can release or detain. Those are within the federal government’s prerogatives, consistent with law,” he said.
Yet the judge has sown confusion as he’s taken control of the government’s deportation and custody machinery.
At one point even he didn’t seem to know what his rulings meant. He told the government it didn’t have to bother reuniting children to parents who’ve already been deported — then moments later told a lawyer for the American Civil Liberties Union, which is representing the families, that it did include deportees.
He later explained that he “misspoke” the first time.
Both the ACLU and Ms. Fabian will be part of a hearing Monday to figure out final details ahead of this week’s deadline. Yet another deadline for juveniles ages 5 to 17 to be reunited with their parents looms later this month.
The government has already worked up 300 criminal background summaries to make sure parents aren’t a danger and had another 1,400 to go as of Friday, Mr. Guadian said.
Government officials say they usually check the background of entire households when they know they are releasing children to them.
They asked whether they could have more time to meet Judge Sabraw’s deadlines.
“My opinion is that some relaxing of the court’s deadlines is needed to allow HHS, on a case-by-case basis, to complete processes that HHS determines are necessary to make informed class membership determinations and to protect the welfare of the children presently in ORR custody,” said Jonathan White, a senior official at the federal Health and Human Services Department, in a court filing.
Judge Sabraw said he needed to know more about those procedures before deciding what to order.