A recent decision from a federal court in San Diego authorized immigrants to sue the federal government over families being separated from their children. While briefing the case, the Trump administration’s attorneys argued no such policy exists. But such a policy clearly appears to exist and the administration has publicly defended this policy on numerous occasions.
First some background.
White House attorneys unsuccessfully moved to dismiss the lawsuit by arguing that there was no legal basis for the original complaint and that the court itself had no power to hear it. The court disagreed and ruled in favor of two immigrant plaintiffs, represented by the ACLU, who had their children taken away from them upon entering the country.
In describing the administration’s policy of child separation, U.S. District Judge Dana M. Sabraw noted that this policy “arbitrarily tears at the sacred bond between parent and child.” Sabraw continued:
Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. The facts alleged are sufficient to show the government conduct at issue ‘shocks the conscience’ and violates Plaintiffs’ constitutional right to family integrity.
To be clear: this was a somewhat narrow decision. As Law&Crime‘s Alberto Luperon explained in an earlier article, the plaintiffs failed to adequately state claims under both the Administrative Procedure Act and the Asylum Act. To that end, it’s also important to clarify that the underlying Trump administration policy of child separation isn’t actually being litigated in this case. Rather, this decision simply allows the two plaintiffs’ due process claims to move forward.
As Sabraw himself noted in the ruling, “The Government’s alleged practice has garnered the attention of numerous groups interested in child advocacy and welfare, immigration law and constitutional law … Whether there is such a practice, and if so, whether that practice is lawful, is not presently before the Court.”
But in pleading facts before the U.S. District Court for the Southern District of California, both the immigrant plaintiffs and the government defendants touched upon the administration’s child separation policy referenced immediately above. That’s where things get a bit counter-factually interesting. Judge Sabraw notes each side’s position:
Plaintiffs allege there are reports the Government may soon adopt a formal national policy of separating migrant families, and placing the children in government facilities for “unaccompanied minors” to deter others from coming to the United States.
As for the defendants? They appear to have dissembled a bit before the court [emphasis added]:
The Government denies it has a family separation policy and concedes such a policy would be “antithetical to the child welfare values” imposed on government actors responsible for the care and custody of migrant children who are separated from their parents as a result of the Government’s enforcement of criminal and immigration law. Instead, the Government asserts it considers each case on the facts available at the time a placement decision is made, and that when separation occurs, it is the result of the Government taking lawful immigration enforcement and detention actions.
This is a bizarre way to brief a federal court. That’s because it’s demonstrably false.
Government attorneys first made their claim that the administration’s family separation policy was not a discrete administration policy in an April 27 reply in support of the government’s motion to dismiss, a copy of which has been obtained by Law&Crime. The entirety of this argument in the pleadings is as follows:
Plaintiffs argue that the Government’s “separation practice” is a “final agency action” subject to APA review. However, Plaintiffs point to no actual Government policy or practice regarding separation that this Court can review. Rather, Plaintiffs are challenging a number of different immigration and criminal enforcement actions by multiple agencies which, when taken with regard to the named Plaintiffs, resulted in the separation of each named Plaintiff from her child.
This is a semi-cunning legal argument. The government’s reality-deficient denial of the government’s own policy is only couched in regard to the pleading strictures of the Administrative Procedure Act. That’s it. All the government can really say is that the immigrant plaintiffs haven’t identified a written directive that qualifies for administrative or judicial review under the APA. But in making their case, the administration went a bit too far and attempted to credibly claim that the government has no such child or family separation policy. Judge Sabraw, in turn, paid little attention to the administration’s sophistry.
It’s also plainly inaccurate.
On February 20, activists documented the alleged administration’s child separation policy–specifically that a new child separation push would be used as a “deterrent” against undocumented immigration. Previously, on December 21, 2017, the administration floated a trial balloon about said policy by leaking details of that policy to the New York Times.
But the actual policy may have gone into effect a few months before that. In October 2017, the New York Times reported that roughly 700 children had been taken away from their families upon entry–but it is unclear whether this was simply longstanding practice or part of the administration’s new enforcement priorities. Then, on May 7, Attorney General Jeff Sessions dispelled any lingering doubts.
During a speech before law enforcement professionals in Scottsdale, Arizona, Sessions said, “If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law. If you don’t like that, then don’t smuggle children over our border.” Sessions used the legally inapposite term “smuggling” to refer to families bringing their children with them. He also falsely claimed that such separations are required by law. They are not. Full stop.
In any event, Sessions confirmed that the administration’s new policy was to separate immigrant children from their families upon capture or entry in the name of deterrence. In the days after that, voluminous media attention focused on the new policy. President Donald Trump even weighed in to chastise the policy–forgetting it was only recently enacted by his own attorney general.
Sessions subsequently defended the administration’s policy in the media. As noted by both Politico and Raw Story, conservative commentator Hugh Hewitt leapt out of character and unexpectedly grilled Sessions on the issue. Hewitt asked, “Is it absolutely necessary to separate parents from children when they are detained or apprehended at the border?” To which Sessions said, “Yes.”
Hewitt pressed on. He told Sessions that the new policy “disturbed” him because “it’s traumatic and terribly difficult on the child,” to be forcibly separated from their parents for any length of time. Sessions wasn’t interested. He told Hewitt, “We believe every person that enters the country illegally like that should be prosecuted. And you can’t be giving immunity to people who bring children with them recklessly and improperly and illegally.”
Hewitt then appealed to Sessions’ humanity. But that didn’t quite work out either. Hewitt asked, “Can you imagine your grandchildren separated from your children for a period of 72 hours or even longer in a dormitory with up to–the deputy secretary told me, 1,000 other children–and the impact on them of that?” Sessions replied, “Hugh, you can’t, the United States can’t be a total guarantor that every parent who comes to the country unlawfully with a child is guaranteed that they won’t be, is guaranteed that they will be able to have their hand on that child the entire time. That’s just not the way it works.”
Repeatedly announcing one policy to the media–after enacting said policy–while claiming in legal briefs submitted to a federal court that said policy doesn’t exist isn’t usually the way it works either. But here we are.
[image via Chip Somodevilla and Getty Images]
Editor’s note: this article has been amended to include a discussion regarding the government’s initial claim that no child separation policy exists.
This is an opinion piece. The views expressed in this article are those of just the author.