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Federal Court Enters Nationwide Injunction Banning Separation of Immigrant Families

by Derek Gilna

A June 26, 2018, nationwide injunction by Southern District of California federal district judge Dana M. Sabraw, which ordered the Trump administration to cease separation of immigrant families, effectively ending the “zero tolerance” policy, continues in force while the federal government scrambles to organize an orderly mechanism to reunite and maintain family units.

Judge Sabraw noted in his injunction order that the previously certified class action, which includes similarly situated migrant parents, prohibits “separation of class members from their children in the future absent a finding the parent is unfit or presents a danger to the child.”

“Plaintiffs have demonstrated a likelihood of success on the merits, irreparable harm, and that the balance of equities and the public interest weigh in their favor, thus warranting issuance of a preliminary injunction, “the judge said.

He also stated that the order did not impact “the Government’s discretionary authority to enforce immigration or other criminal laws, including its decisions to release or detain class members. Rather,” he said, “the Order addresses only the circumstances under which the Government may separate class members from their children, as well as the reunification of class members who are returned to immigration custody upon completion of any criminal proceedings.”

The federal government, confronted with thousands of immigrants at its southern border, including many families with minor children, was unable to process or properly house the new arrivals, and in an apparent bid to discourage further border crossings by undocumented immigrant, instituted the “zero tolerance” policy. However, the government proved itself largely incapable of accounting for the whereabouts and welfare of the minors in its custody and control – or to provide a mechanism for family communication.

It was the family separation fiasco that prompted the court to find that such a policy “violates the parents’ substantive due process rights to family integrity under the Fifth Amendment to the Constitution,” and found that it “shocks the conscience.”

The government, the court said, separated these families “without any effective system or procedure for (1) tracking the children after they were separated from their parents, (2) enabling communication between the parents and their children after separation, and (3) reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence.”

The court further ordered that there be no additional family separation, “absent a determination that the parent is unfit or presents a danger to the Case,” and ordered family reunification with children under the age of 5 within 14 days, and within 30 days for those with children over the age of 5, subject to fitness determinations.

The administration conceded that it was unable to completely reunite families within that time period, resulting in numerous continuances and additional status conferences while the court unwound the impact of the “zero tolerance” policy, a process further complicated by the partial government shutdown.

See: Ms. L.; et al. v. U.S Immigration and Customs Enforcement (“ICE”), et al., Case No.: 18cv0428, USDC for the Southern District of California, June 2018


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Related legal case

Ms. L.; et al. v. U.S Immigration and Customs Enforcement (ICE), et al.