The Trump administration is facing a new challenge to its controversial separation of thousands of migrant children from their parents, with lawyers arguing that those families have not had adequate opportunity to seek asylum in the United States.
A federal judge in California has ordered the government to reunite the families — a process that is ongoing — and is weighing whether to extend a limited ban on deportations so parents can consult with attorneys and consider their children’s options.
But a new proposed class-action lawsuit, the subject of an emergency hearing Tuesday in U.S. District Court for the District of Columbia, goes further, saying many of the 2,600 children taken from their parents never had a chance to go before a judge or immigration officer. Parents who appeared for such hearings, the lawsuit says, were often “too distraught” by the separations to properly make their case.
“We’re not arguing that all these children and parents should be given asylum . . . just the right to apply for asylum,” said Justin Bernick of Hogan Lovells, which filed the suit on behalf of six children from Central America. “Some will qualify for asylum and some won’t. But they should still be entitled to their day in court.”
A spokeswoman for Hogan Lovells said that the Justice Department agreed late Tuesday that none of the families would be deported through Friday, giving U.S. District Judge Paul Friedman in Washington more time to decide whether to transfer the new case to the judge in California, as the government requested, or decide it himself.
The Justice Department did not respond to requests for comment.
Justice Department lawyers oppose the stay, saying that parents who had the chance to pursue asylum separately in immigration detention, and lost, can now exercise their rights to be deported with their children.
“Absent a severing of parental rights, those parents are entitled to act on behalf of their children in litigation — including by seeking reunification and departure from the United States as a family unit rather than separate immigration proceedings for the parent and child,” lawyers said in court filings.
But the children’s attorneys said the family separations deprived their clients of the right to be interviewed or share vital information germane to their parents’ asylum cases. They said the children, who became “unaccompanied” minors after the separations, should have been entitled to a broader array of rights under the law, including a full review of their cases.
About 1,000 parents of separated children have final deportation orders, although fewer than 400 are in immigration detention and therefore eligible to be sent home quickly, Justice Department lawyers said last week. Hundreds more have been released in the United States to await travel documents or because they have been reunited with their children and the government has no more space in its family detention centers.
Because children are only allowed to remain in those centers for 20 days, the lawsuit could lead to the release of children and parents to await immigration proceedings that, if their claims are found to have merit, could stretch on for months or years. Parents who initially lost asylum cases while separated from their children could try to reopen their cases.
In the complaint, lawyers say the separations violated the Fifth Amendment right to due process, among other rights. They urge Friedman to impose a temporary restraining order barring deportations until the asylum claims are finished and order new asylum interviews for parents “that are free from the distress of family separation.”
The plaintiffs include a 10-year-old girl from Guatemala who said her grandfather sexually abused her and threatened to kill her and her mother, and a 12-year-old Honduran boy who said gangs threatened his and his mother’s lives.
Attorneys say parents and children are entitled to individual asylum proceedings under federal law. In the past, some families have gone through the proceedings together, but attorneys say the Trump administration interrupted this process through the zero-tolerance policy it rolled out in the spring. Parents were prosecuted for illegally crossing the border and then detained in immigration facilities for deportation proceedings. Children were sent to less restrictive shelters across the country.
Adults were interviewed by asylum officers and then sent to immigration court if they were deemed to have a valid asylum claim. Those who failed to prove their case could seek a cursory review of their case by a judge, and then could be deported.
Attorneys said the children were supposed to have asylum interviews and hearings as well, but said only some children were given notices to appear in immigration courts. “I have never been to immigration court, or had an interview with any asylum officer,” one plaintiff said in court records. “My lawyer is the only person who has asked me if I am afraid to return to Honduras, and I am afraid.”
The Trump administration has alleged that the influx of asylum seekers at the border is largely a ruse to win release in the United States pending a future hearing date in the backlogged immigration courts. Advocates say immigrant families are legitimately fleeing violence in Central America.