The Trump administration says it needs more time to reunite some families separated at the border because officials are having difficulty matching children with their parents, according to federal court records filed Thursday.
In the documents, the administration said it may take longer than anticipated to establish that an adult is, in fact, the parent of a particular child and said that in those cases, the agency may not meet court-ordered deadlines.
At a court hearing Friday afternoon about the government's request, the judge did not immediately rule, instead ordering the administration to provide additional information to lawyers for the parents over the weekend to see if they can work together to reunify families within the timeframes already set out by the judge.
When an attorney for the Justice Department said that they may have identified more separated children than would fall under the precise terms of the court’s order — there are exceptions to reunification if a parent has a criminal history, for instance — US District Judge Dana Sabraw urged the government to be “over-inclusive" and to act within the "spirit" of his order.
“The idea of being over-inclusive is a good one,” Sabraw said. The goal of the court’s earlier injunction was to reunite families, he added, but also to have the government establish a process going forward to track children “so that they can be reunified with their parents at the appropriate time.”
In a particularly striking section of the Justice Department’s latest filing, a senior Health and Human Services (HHS) official included a declaration that laid out how the agency lacked clear systems for keeping track of separated parents and children, leading to complications for reunification.
The process of identifying separated children was "extraordinarily time and resource intensive," the official wrote, because the Department of Homeland Security (DHS) used several different systems that weren't designed to "readily share" information. HHS manually reviewed files for the thousands of children in its custody to look for signs that a child was separated from a parent at the border, the official wrote.
Sabraw, who sits in San Diego, ruled June 26 that the Trump administration could no longer separate families at the border, absent a finding that a parent was unfit or posed a risk to the child. He ordered the administration to reunite all class members — defined as all adults in immigration custody who have a child they have been separated from and whose child is in government custody — with their children within 30 days, or 14 days if a child was younger than 5 years old, and to allow parents to contact separated children within 10 days. The 14-day deadline will expire next week.
During Friday’s hearing, Justice Department lawyer Sarah Fabian said they had identified 101 children under 5 years old who may fall under the judge’s order. Fabian said 19 parents of those children had been removed from the United States, and she disputed whether those parents would qualify as members of the class as approved by Sabraw. She also said an additional 19 of the parents had been released from custody.
She also said it could take longer to reunite children whose parents had been removed from the country or released from custody, if the government had trouble locating them.
There had been a “massive effort” by the government to comply with the judge’s order, Fabian said. But her arguments disputing whether some children would fall under Sabraw’s order prompted the judge’s comments urging the government to be “over-inclusive” in how it goes about trying to reunite families.
Sabraw ordered the government to provide a list of the names of the 101 children to the American Civil Liberties Union, which is representing the plaintiffs, by Saturday evening. ACLU lawyer Lee Gelernt told the judge they would be willing to help the government locate parents who had been removed.
Sabraw said that he would be willing to relax his deadlines if the Justice Department made specific representations about why it could not reunite a particular family or subset of families. But absent that, he expressed reluctance to approve a broader delay.
In the Thursday filing, the Justice Department described the administration's efforts to use DNA testing to establish a parent-child relationship. Government lawyers wrote that, “In some cases … this process may not be conclusive in establishing parentage, and further evaluation of available documentation may be required ... Confirming parentage for adults who have already been released may take additional time, including for the parent to appear for DNA testing or other confirmation."
The document notes that “HHS has worked diligently to expedite these processes to enable the Government to comply with the timelines in the Court’s order. HHS anticipates, however, in some instances, it will not be able to complete the additional processes within the timelines the Court prescribed.”
In light of the need for more time, the filing states that, should the judge find the government is proceeding properly, “HHS seeks partial relief from the timelines in the Court’s order to allow HHS to comply with these obligations and to self achieve the reunifications that the order directs.”
The Justice Department also asked the judge to clarify his earlier order about whether the government could detain parents in custody for an extended period of time to facilitate reunification, rather than releasing them without being reunited with their children.
In comments made earlier Thursday, HHS Secretary Alex Azar said the administration would comply with the original deadline set by a judge for reunification, though he called the timetable "extreme."
In another family separation case in federal district court in Washington, DC, plaintiffs told a judge in a filing Thursday that they had received no information from the government about reunification plans, such as a timeline.
