One moment from a status conference in the ACLU’s lawsuit on behalf of families that had been separated by the Trump administration went a bit viral on Friday. It occurred when a government attorney mentioned that she had dogsitting responsibilities in Colorado after both lawyers were reportedly asked by the judge where they would be for the weekend.
Despite one report to the contrary, that moment seems to have had no substantive effect on the case itself. But there were other important takeways from the latest hearing in Ms. L v. ICE, the case that resulted in a nationwide injunction blocking further family separations and demanding urgent reunifications.
The hearing was for the court to get an update on the status of those reunifications and for the judge to respond to the government’s request for an extension. Judge Dana Sabraw—a George W. Bush appointee—had mandated in a June 26 ruling that the government reunite children younger than 5 with their parents within 14 days and children older than 5 within 30 days.
The deadline for that younger group, which includes children the government has dubbed “tender age,” is coming up next week. The government says it won’t be able to meet that deadline, and is also requesting to stick to internal Department of Health and Human Services protocols that could lengthen the amount of time until these children are returned to their parents.*
Judge Sabraw gave the government until Saturday at 5 p.m. to offer the ACLU a list of all of the children younger than 5 who it has identified as having been separated. From there, the government is supposed to identify any cases where it thinks a reunification might be delayed and explain those cases to the judge in a new hearing on Monday. The judge did not rule on whether he would grant the government a reunification extension, but it reportedly appeared as though he might consider doing so on a case-by-case basis on Monday.
Perhaps the most disturbing aspect of the hearing on Friday was the number of parents who the government has been unable to find after taking their very young children.
The Department of Justice attorney, Sarah Fabian, said the government had identified 101 children younger than 5 who might fall within the judge’s order. Two parents of those children, the government argues, have criminal records that render them unfit to be reunited with their children. Fabian said 19 parents had been released from custody into the United States and 19 had been deported. The government does not know where at least some of these parents are.
The Courthouse News Service reported that there are “86 parents who have been in contact with 83 children under 5 who are in federal custody.” These numbers indicate that roughly 16 children have not had contact with their parents, who may be missing following deportations or release into the United States.
This raises the terrifying possibility that 16 children younger than 5 may never see their parents again because of Trump’s unconstitutional child separation practices. The ACLU has promised to do everything it can to ensure that doesn’t happen, but that outcome will depend greatly on how adept the administration is at undoing some of the damage it has already done.
Correction, July 6, 2018: This post originally misstated that the number of children separated under Trump administration policies who had not had contact with their parents was 18. The number was reportedly 16. It also misidentified the Department of Health and Human Services as the Department of Human Services.