The American Civil Liberties Union asked a federal court last week to order the government to allow migrant children to be released directly parents with felony or violent misdemeanor records, saying it’s more important families are quickly put back together.
Filed with a judge in San Diego, the request is the latest round in the battle over the administration’s now-defunct zero-tolerance policy that led to family separations last year.
The ACLU said in court documents that too many of the families still face hurdles to being reunited because of criminal records that are sometimes decades old.
And there are major differences in how different regions of the border handle separations, leading to an inconsistent policy, the organization said.
“Under no conceivable understanding of child welfare would a parent with a non-violent decades-old theft offense be viewed as a danger to his child,” wrote Lee Gelernt, the ACLU’s lawyer on the case.
In a separate statement last week, the ACLU also said the government has revealed an additional 1,556 cases of separation. That would appear to be in addition to the 2,814 separated children previously acknowledged in the lawsuit.
Of that earlier group, only about 25 remain in government custody. The others have either been reunited with parents or turned over to other sponsors so they can remain in the U.S.
The ACLU has been on a winning streak in the case, having faced down the Justice Department on several major issues. But the new argument could be the toughest test for immigrant rights advocates.
The Justice Department declined to comment, citing the ongoing case.
Neither Health and Human Services or Homeland Security responded to requests for comment.
Christopher Hajec, director of litigation at the Immigration Reform Law Institute, said the ACLU’s demand was striking, beyond the issues of criminal records.
“What the ACLU is contending for is the right for these families to be together in the United States,” he said. “Criminal sentences aside, no one is stopping them from being together in their home countries.”
The Justice Department declined to comment citing the ongoing case.
Customs and Border Protection, which is responsible for the initial decisions on separation, said it was limited in what it could say because of the litigation, but said the agency follows the law when making those decisions on children.
“In accordance with requirements to protect children under the Trafficking Victims Protection Reauthorization Act (TVPRA), there are instances where a child may be separated from a parent solely for the child’s welfare,” the agency said in a statement.
Those include a criminal history, an outstanding warrant, a communicable disease, a bogus family relationship or being caught carrying illegal narcotics at the time of entry.
Family separations were a major issue last year, after the Trump administration announced its zero-tolerance policy of bringing criminal charges of illegal entry against parents who brought children into the U.S. with them. Though they were always subject to the law, the government had generally shied away from prosecuting parents.
Since there are no family facilities in the criminal justice system, the prosecutions meant the parents were jailed and the children were taken from their custody and sent to the Health Department for care.
After a massive bipartisan backlash, President Trump canceled the zero-tolerance policy. Meanwhile a federal judge in California ordered the nearly 3,000 families that had been separated to be reunited.
But Homeland Security still separates some children when the parents are deemed a danger, either because of signs of abuse or a parent’s illness or criminal record.
“This is in the interest of the child,” acting Secretary Kevin K. McAleenan told Congress over the summer.