Judge to decide if government discretion should be curbed

SAN DIEGO >> Both sides claim to have the children’s best interests at heart.

On one, the U.S. government is continuing to separate migrant children from certain parents deemed a danger or unfit. On the other, migrant advocates are trying to shield children from the terror of separation. Which is right?

It’s the question U.S. District Judge Dana Sabraw now is being asked to consider in yet another major development in the family separation litigation that has stretched over nearly two years and already reshaped immigration policy along the southern border.

At least 1,050 family separations have occurred at the border since Sabraw’s landmark preliminary injunction in June 2018 generally curbing the practice, and the American Civil Liberties Union is asking the judge to rein in the broad discretion the government has been given to make such life-altering decisions.

“I think we are looking at the biggest moment in this case since the beginning,” ACLU attorney Lee Gelernt told Sabraw during oral arguments on the issue Friday. “What we have are parents losing children when they are perfectly capable and not a danger.”

The ongoing separations are made for a variety of reasons: criminal history, communicable disease, fitness, dangerousness, doubts of parentage and criminal prosecution.

The matter had seemed largely decided last year when Sabraw agreed that the law afforded the government the discretion to make final calls on separations when it came to those criteria. He even approved a class definition that excluded any migrants with criminal histories — while also encouraging the government to be generous with exceptions, especially when it comes to minor violations.

But recently, the ACLU claimed the government was abusing that discretion, pointing to numerous examples over the past year that suggested unwarranted separations.

At the center of its argument is criticism of the government’s seemingly heavy reliance on criminal history to determine if a parent is a danger or unfit to a child. Gelernt pointed to case law across the country that protects the rights of parents with even the most egregious convictions to retain custody after prison, as long as the child was not the victim.

Sabraw agreed to an extent, calling the examination of criminal history alone “an obtuse way to determine fitness and danger” of a parent. He put it into perspective with an example of a father who beats a man nearly to death and does prison time for assault with a deadly weapon — a serious and violent crime.

“That man might be the most loving, protective father,” Sabraw said.

However, the father could present a danger to others if the government decided to detain him in a family detention center, he said.

“Those are the issues that are difficult, where I struggle,” he said.

Deputy Assistant Attorney General Scott Stewart pushed back on the notion that the government should have to follow a rigid policy on when to separate, underscoring the complexity of the border and the need to make quick decisions on limited information.

“There have been a number of mistakes, we acknowledge that,” Stewart said. But he argued that the separations generally were based on clear, objective standards, as laid out in existing government’s guidelines.

In particular, he pointed to guidance that asks border authorities to focus on criminal convictions for “violent misdemeanors or felonies.”

“We’re really trying to do what we can to get this right,” Stewart said.

Sabraw acknowledged the robust protection for government discretion in areas of national security, immigration policy and detention. But he also questioned how that intersected with the constitutional right to family integrity.

He then pressed the government on why it hadn’t implemented a scientific solution to a simpler problem — using rapid DNA tests to determine parentage. At least 46 separations in the past year were based on parentage doubts, and the ACLU pointed to several instances which could have been avoided with instant testing.

Although Stewart said Homeland Security has implemented a pilot program using rapid DNA tests in some regions, he argued that the number of separations based on parentage doubts was too small to warrant requirement of a widespread operation.

“Expense takes a far back seat when you’re dealing with a constitutional right,” Sabraw said.

The judge took the entire matter under submission and will issue a ruling later.