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Federal judge calls Friday filing by HHS ‘cover’ for its failings in reunification process

Detainees are seen inside a facility  where tent shelters are being used to house separated family members at the Port of Entry in Fabens, Tex., on June 21.
Detainees are seen inside a facility where tent shelters are being used to house separated family members at the Port of Entry in Fabens, Tex., on June 21. (Matt York/AP)

The federal judge overseeing the reunification of children and parents separated at the U.S.-Mexico border berated the Trump administration late Friday, accusing it of using his ruling as “cover” to imply that speeding up the reunification process might potentially endanger children.

U.S. District Judge Dana M. Sabraw in San Diego called an unscheduled, after-hours hearing via conference call Friday after a key federal official filed a sworn statement with the court saying that Sabraw’s deadlines for reuniting children were forcing the government to shorten the vetting process. The statement implied that the deadlines could result in the government placing as many as 175 children with people who were not their biological parent, among other risks.

The official, Chris Meekins, chief of staff for the Office of the Assistant Secretary for Preparedness and Response, the unit at the Health and Human Services Department that is helping lead the reunification effort, said in the statement that the “faster reunifications” may land children in “potentially abusive environments.”

During the conference call, however, the judge criticized the administration for listing a “parade of horribles” that presented a skewed picture of his orders. He said he had ordered officials to release children quickly and safely, and expressed concern that that might not have happened in some cases.

“That is on the government,” Sabraw said, according to a transcript of the call. “And that’s a failure of the process and it is inconsistent with the court’s order.”

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The Trump administration separated thousands of families largely as part of a zero-tolerance policy launched in May that prosecuted parents for crossing the border illegally, sending them to jails and then immigration detention, and their children to shelters overseen by HHS.

Evelyn Stauffer, an HHS spokeswoman, said Saturday that the agency is conducting background checks and ensuring that parents are fit to regain custody, but that it would prefer a fuller vetting process to ensure the children’s safety. Federal officials have pointed out that a more extensive vetting process for younger children had uncovered that some adults were not the children’s biological parents, and that one mother planned to share a house with someone accused of a sex offense.

“The department has been operating in good faith and earnestly trying to comply with court orders, including the rapidly approaching deadline for reunification,” she said in a statement. “In the interests of transparency and cooperation, the department felt it necessary in our filings on Friday to share with the court our view that meeting the deadline would mean truncating the process we might have otherwise followed.”

In an order last month in the case, the result of a class-action lawsuit filed by the American Civil Liberties Union, Sabraw had given officials until last Tuesday to return 103 children under age 5 to their parents, and until July 26 for the remaining 2,500 children to be reunited with their families.

The children separated from their parents, by the numbers

With the younger children, federal officials had demanded DNA testing of all parents and fingerprinting of household members — a more extensive process than federal immigration officials had required in the past for families apprehended together. Advocates had protested that such testing was unnecessary in most cases and was delaying reunions.

To resolve the dispute, the judge had instructed officials to rely on a longtime policy used by U.S. Immigration and Customs Enforcement to verify parentage, and to require DNA testing and other vetting only when there were safety concerns.

Hours before the conference call Friday, Sabraw had signaled in an earlier hearing that he thought the issues had been resolved, praising the government’s efforts as “substantial.” Justice Department lawyers had reported that officials had reunited more than half of the 103 children with their parents, but several dozen others would not immediately regain custody because they had been deported, had serious criminal backgrounds or other issues.

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But soon after the first hearing ended, the Justice Department filed its blueprint to the court, sketching out its plan to reunite the much larger group of 2,500 children over the next two weeks — along with Meekins’s statement expressing concerns about Sabraw’s streamlined process.

At 5:25 p.m. California time, the judge called the parties back into court by phone, saying he had “very serious concerns,” and “frankly speaking, am very disappointed.”

He said he had ordered DNA testing to be a “last resort,” but made it clear that it should be done quickly to meet his deadlines.

“Unfortunately, as has been consistent with this case, one agency of the government is not communicating with the other,” Sabraw said. He expressed concern that HHS, which has custody of the children, is “off in the hinterlands” and not following his orders.

Sabraw said Meekins’s declaration stating concerns about the vetting process “is clearly written to provide cover for HHS.”

Sabraw said the government “has an absolute 100 percent obligation to meet these deadlines and to do it safely.”

HHS officials said they plan to return as many as 200 children a day to their parents to comply with Sabraw’s orders.

The government has told the court that it intended to identify six to eight sites to process the larger group of 2,551 older children on a rolling basis beginning Friday.

Government says it will reunite up to 200 migrant children a day with their parents

All told, the government separated more than 2,650 children from their parents under Trump’s “zero tolerance” policy — which the administration ended last month — or before that policy took effect.

Officials also said late Friday that not every family will be reunited by the judge’s deadline; the same occurred with the smaller group of 103 children age 4 and younger. Some parents did not regain custody of their children because the parents had criminal records, were deported before reunions could be effected or for other reasons.

On Saturday, Lee Gelernt, a lawyer for the ACLU, which filed a lawsuit on behalf of the separated parents, praised the judge’s remarks.

“The Court properly called out the government for its attempt to blame this mess on the Judiciary, making it clear that the government no longer seemed to be acting above board,” he said in a statement.