But the court will probably let the administration off the hook for now.
The federal government is definitely not going to meet Tuesday’s deadline, imposed by federal judge Dana Sabraw, to reunite all of the more than 100 children under the age of 5 separated from their parents at the US-Mexico border under President Donald Trump’s “zero tolerance” prosecution policy.
But it’s almost certainly not going to matter.
At least 54 children are expected to be reunited with their parents Tuesday. Judge Sabraw has all but promised the government that he’ll extend the deadline Tuesday for the few dozen children remaining — as the government works with the ACLU to try to figure out what a reasonable timetable is to vet parents who have been released from Immigration and Customs Enforcement (ICE) detention and locate those who’ve already been deported.
With the deadline looming, the government and the plaintiffs in the lawsuit over family separation (led by the ACLU) are working overtime to hash out a plan to identify and reunite as many families as possible in time. They’re collaborating to share information and track down children and parents — meaning that the ACLU is more interested, right now, in setting a deadline the government can meet than slamming it for missing one.
Unsurprisingly, the ACLU has a more aggressive idea of what’s possible than the government does. But the disagreement between the two, at this point, is narrow enough that the judge (and maybe even the ACLU) are reassured the government’s making a good-faith effort to comply with the reunification order.
The government is supposed to reunite at least 84 families by tomorrow. It expects to reunify 54.
On Sunday, the government gave the ACLU a list of 102 children who it believed were still separated from their parents and covered by the order. But on Monday, when it broke down the numbers for the judge, it became clear that there aren’t quite that many kids at issue going into Tuesday’s deadline. Here’s a breakdown:
There are at least 84 children under 5 years old who were separated from their parents upon arriving in the US and should be reunited with them, under the current court order, by Tuesday, July 10:
54 will definitely be reunited with their parents Tuesday, according to the government’s testimony Monday. The parents are currently in ICE custody; the children will be reunited with them there, and then, the government says, the parent and child will likely be released from custody together.
12 can’t be reunited by Tuesday because their parents are still in criminal custody. Eight parents are in federal criminal custody, and will be returned to ICE once their criminal cases have been completed. The other four had outstanding state warrants and are now in state custody — which means the federal government might not be notified before they are released from jail or prison.
Nine will not be reunited by Tuesday because their parents were already deported — either before the court order went into effect preventing further deportations of parents without their children; in violation of the court order; or with the parents knowingly agreeing to be deported without their children.
The government is providing the ACLU with information about when and to where the parent was deported (in the hopes that nonprofits will be able to locate the parent), and hoping to set up a system to ask deported parents if they want their children returned to them or if they want the kids to stay in the US and pursue their separate legal cases.
Nine parents have been released from custody and may not be located or vetted in time. This is the biggest sticking point in judging whether the government is complying with the judge’s reunification order in good faith. The government says that four of these nine parents are currently being reviewed under the standard process for vetting sponsors of “unaccompanied alien children” — which is fairly demanding. The other five presumably haven’t been located yet.
The ACLU is pushing the government to streamline its vetting process, and also told the judge it wasn’t sure how much effort the government had put into locating parents who hadn’t yet been found. If there is a claim that the government is in contempt of the court order, it will probably be because of this group.
There are 10 children under 5 who might fall under the reunification order, but the government still isn’t sure:
Five children might be prevented from reuniting with their parents because of the parents’ criminal records. Of the 59 parents currently in ICE custody, five of them are still undergoing background checks because DHS officials raised questions about their suitability to have children released to them. The court order doesn’t require the government to reunify the family if a parent is deemed unsuitable due to her criminal history — but the ACLU wants the judge to be clearer about what, exactly, disqualifies a parent.
Four children might be released to someone other than a parent, with the parent’s consent. Several parents had agreed to allow their children to get released to another sponsor — who is generally another relative or a family friend, but in rare cases can be a foster parent — before the court order gave them a right to be reunited with their kids. The government is currently double-checking with those parents to make sure they still want their kids released to another sponsor.
One child has not yet had a parent identified. The government isn’t sure whether this child came with a parent to the United States or not.
Additionally, the government figured out that six of the children on the list it gave the ACLU last night weren’t actually covered under the court order (because their parents had disqualifying convictions, or because the adults they came with weren’t really their parents), and two were reunited with their parents by Monday afternoon.
Meanwhile, the ACLU, citing advocates on the ground, says there might be as many as 10 additional separated children that the government hasn’t included on its list. The ACLU and the government are attempting to track down more information — one of the many fronts on which the two sides are racing to work together before the Tuesday deadline.
What happens next
The court case is expected to proceed right up until the deadline — the lawyers are supposed to file a new brief tonight, and there’s going to be another hearing Tuesday midday.
In theory, if negotiations break down, the government could be accused of violating the court order by missing the deadline for reunification of all kids under 5 — putting it at risk of being found in contempt of court. But in practice, judges almost always give government agencies multiple chances to comply with court orders by amending them before they charge anyone with contempt.
Even if the judge were to go so far as to charge the government with contempt, it would require a separate court proceeding — and it’s not clear that a government agency can be fined for contempt. In other words, the government holds most of the cards.
Here are the outstanding issues:
How much vetting does a parent need? The government insists that it can’t speed up the vetting process before releasing a child to a parent without violating the Trafficking Victims Protection Reauthorization Act (which governs the treatment of children deemed “unaccompanied alien children”). The ACLU maintains that the government could streamline the process without issue — which would allow the government to reunite at least four more children with parents by tomorrow. The two sides are hoping to get the judge to rule on this question Monday night.
What criminal convictions disqualify a parent from reunification? The ACLU is asking the judge to clarify what specific criminal convictions might deem a parent unsuitable to be reunited with his child. It’s not clear what standards the government is using, and some past crimes (like petty theft) might not be relevant to the ability to take care of a child.
When will the public know how many families have been reunified? The judge in the case wants a status update by Tuesday night; the government wants to wait until Wednesday morning.
What about the children over 5 — as many as 2,900 of them? All of this, of course, is specific to the July 10 deadline for children under 5. But there could be as many as 2,900 children 5 and over who were also separated, and the government is under an order to reunite them with parents by July 27.
Given the difficulty reuniting 100 families in two weeks, it’s not at all clear that the government will be able to reunite 2,900 more in another two weeks. And while it looks like the reunification process is moving much faster now than it was a week ago — and that the ACLU and the government appear to be working together to some extent to untangle the mess — it’s not clear whether the ACLU is going to be as conciliatory toward the government after the first deadline is resolved.