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Judge Calls Trump's Border Separations of Children `Brutal'

Echo essay from Bloomberg News ~By Erik Larson

The Trump administration failed to kill a legal challenge to its practice of separating undocumented parents and children who seek to enter the U.S. to flee persecution at home, with a judge handing an early victory to civil rights activists who say the policy is unconstitutional and cruel.

U.S. District Judge Dana Sabraw in San Diego on Wednesday denied a motion to dismiss the suit, in which the American Civil Liberties Union argues that splitting up families at the border violates their due process rights.

The practice, spearheaded by Attorney General Jeff Sessions, caused widespread outrage after images of children in detention centers circulated on social media. The government argues separations are necessary to properly prosecute adults who cross into the U.S. illegally, while activists say children are being used as pawns in an informal policy intended to deter migrants.

“These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child," the judge wrote. The conduct, if true, “is brutal, offensive, and fails to comport with traditional notions of fair play and decency."

Trump’s supporters have for the most part backed his efforts to crack down on the thousands of immigrants who enter the country illegally each month and the millions who are already in the U.S. But courts haven’t been as friendly to his policies, and have so far blocked his move to deport about 800,000 young people known as Dreamers who were brought to the U.S. illegally as children and have since established their lives here.

Sabraw said the ACLU’s claims are particularly troubling because the plaintiffs in the case had allegedly come to the U.S. seeking asylum out of fear for their well-being in their home countries. The suit applies to migrants who formally present themselves at ports of entry as political refugees as well as those who seek asylum after they are apprehended during illegal border crossings.

“The government actors responsible for the ‘care and custody’ of migrant children have, in fact, become their persecutors," the judge said.

The judge rejected the ACLU’s argument that the separation practice violates the Asylum Act and the Administrative Procedure Act, but gave the rights group permission to amend its complaint to address deficiencies in those claims. The ACLU’s request for an order halting the practice while the case proceeds is pending. 

Also, the group wants families reunited, pending the outcome of the case.

The ACLU alleges that its two lead plaintiffs, women identified as “Ms. L" from the Democratic Republic of the Congo and “Ms. C" from Brazil, along with hundreds of other migrants, have suffered “wrenching separations" from their children for no legitimate purpose. The process will soon become a national policy, they claim, though the U.S. disputes that.

"Today’s ruling could not be stronger, and squarely rejects the Trump administration’s claim that these families lack the constitutional right to remain together," ACLU attorney Lee Gelernt said in in an email.

Homeland Security declined to comment on pending litigation.

Galernt, who argued at a hearing in the case last month, called Trump’s recent claim on Twitter that Democrats are to blame for the policy "absolutely untrue."

"This is a Trump administration policy," Gelernt said.

The ACLU says prior administrations detained migrant families, but didn’t have a practice of forcibly separating parents from their children unless the adults were deemed unfit. The civil rights group claims the U.S. will soon adopt the practice as a formal policy, though the government denies that.

The U.S. “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," according to the decision.

The two women who brought the complaint were separated from their children after entering the U.S., one through a formal asylum-seeking process at a port of entry and the other by illegally crossing the border.

The border officials "failed to present any evidence to support their assertion that they were simply complying with the statutes" during those separations, the judge said.

The case is L v. U.S. Immigration and Customs Enforcement, 3:18-cv-00428, U.S. District Court, Southern District of California (San Diego).