Border Agents Still Separating Hundreds of Migrant Kids From Parents, Says ACLU

Border officials have taken more than 900 migrant children from their parents over the past year, despite a judge's order to restrict family separations, according to a motion filed by ACLU attorneys Tuesday in federal court in San Diego.

In the filing, the attorneys said that some migrant parents lost their children over minor convictions, including driving without a license or marijuana possession, and in one case because a border agent blamed a father for not changing a diaper promptly. The ACLU also alleged that Homeland Security officials had taken children away based on clerical errors or misunderstandings due to language barriers.

The ACLU, which represents migrant parents in a class action lawsuit (Ms. L. v. ICE), based its information on reports provided to the plaintiffs by Trump administration lawyers, documenting 911 children separated from parents at the border between June 26, 2018 and June 29, 2019.

U.S. District Judge Dana Sabraw issued an injunction on June 26 last year ordering the Department of Homeland Security to halt most migrant family separations and promptly reunite children with their parents. Sabraw allowed for individual exceptions, in cases where the government found a parent unfit or a danger to the child.

In Tuesday's motion, ACLU attorneys asked the judge to clarify when those exceptions can be made. They noted that Sabraw had initially allowed separations based on a parent's criminal history.

But they said that the government has been using minor criminal convictions and unsubstantiated allegations of wrongdoing as a reason to take children from their parents, disregarding the fact that "the Court’s decision relied on traditional due process and child custody standards, which permit the drastic step of separating a child and parent only where the criminal history is so significant that it bears on whether the parent is a danger to the child or is an unfit parent."

In May, Acting Homeland Security Secretary Kevin McAleenan told a Senate committee that family separations have become "extraordinarily rare."

"It's done for the safety of the child," he said, "if there's a serious criminal violation, an indication that the parent presents a risk to the child, if there's a communicable disease issue for either the parent or the child, they need to go to emergency care. "

McAleenan said Homeland Security personnel only take children from parents based on "defined criteria" that are in accordance with the Ms. L. court order.

The ACLU motion noted that more than half of the 911 children are under 10 years old — and 185, or 20 percent of them, are under 5 years old, including numerous infants.

"Hundreds of children, some literally just babies, are being irreparably damaged because their parent may have committed a minor offense in the past, even a traffic offense," the lawyers wrote.

In addition to these migrant families separated since last June, the original class of separated families comprised more than 2,800 children. In January, a government watchdog agency found that hundreds or thousands of additional families may have previously been separated at the border, beginning in 2017.