Jail time unlikely if officials bust immigration deadline

A federal judge may decide this week to impose some kind of punishment against the Trump administration if he determines that it failed to meet his deadlines to reunite immigrant children separated from their parents.

Though it’s unlikely that Attorney General Jeff Sessions or Department of Homeland Security Secretary Kirstjen Nielsen would be carted off to jail, U.S. District Judge Dana Sabraw does have several options to force the government to speed up the reunification process.

Legal experts said the judge could threaten contempt of court – and jail time – against lower-ranking members of federal agencies, could order hefty fines or order the agency heads to appear in court as a form of public shaming.

Stephen Yale-Loehr, an immigration law professor at Cornell Law School, said even those sanctions would be difficult to enforce because they would surely draw government appeals. A more symbolic finding of contempt of court, without much punishment attached, may be the limit of Sabraw’s ruling. “The court of public opinion, and the admonition by the judge, may be about as much as anyone can practically do at this point,” said Yale-Loehr, who signed onto an amicus brief against the government in a lawsuit.

Last month, Sabraw ordered the Trump administration to reunite nearly

3,000 children separated from their families, most under the president’s “zero tolerance” policy that went into full effect in May. Sabraw ordered that

63 children under age 5 be reunited by Tuesday night. All other minors must be reunited by July 26.

Department of Justice lawyers asked for an extension of Tuesday’s deadline. During a court hearing Tuesday, Sabraw didn’t budge.

He asked an American Civil Liberties Union attorney who led the lawsuit to file suggestions for punishment, which Sabraw is likely to rule on during a court hearing Friday.

“Having that hanging over their heads is a great incentive to take a whole agency and move quickly,” said Ira Kurzban, a Miami-based immigration attorney who signed onto the amicus brief against the government.

Stephen Legomsky, a professor emeritus at Washington University School of Law in St. Louis, said the judge could threaten to jail lower-ranking officials who carried out the separations.

Kurzban, Legomsky and other legal experts said such threats are highly unlikely, given the legal challenges they would prompt and the public spectacle they would create.

Alexander Stern, a California attorney who polled a half-dozen law professors on the possibility of jail time for administration officials, said they agreed that seeking jail time for Cabinet secretaries would distract from the goal of reuniting all 3,000 families.

Another option for Sabraw is to fine the government. He could order a certain amount each day that it remains in violation of his order, or for each child that remains separated from the parent.

Another option for Sabraw is ordering the heads of government agencies to fly to San Diego and appear in his courtroom to explain the actions of their agencies. Kurzban said that could work as a way of embarrassing the Trump administration and prompting it to reunify families faster.

“The court of public opinion, and the admonition by the judge, may be about as much as anyone can practically do at this point.”

Stephen Yale-Loehr Cornell Law School