Before getting into the details of the preliminary injunction that the judge ordered, and what it does and does not say, let’s just take a quick look at what the various sides are saying about the issue of children being separated from their parents at the borders.
What the leftists claim:
The leftists will have us believe that President Trump has ordered all children to be ripped from the arms (and breasts) of their parents immediately upon suspicion of their illegal status and that as quickly as the babies are grabbed, they are lost in the system, never to be found again.
What the Trump supporters claim:
The only time a child is separated from their parent is when the parent has been convicted of a crime and is in a criminal detention facility, no different than when any citizen commits a crime and is sent to jail and their kids would likewise be placed in the State’s care if there were no other competent relatives to care for them. And besides, this is all Obama’s fault, anyway!
Like every other issue being debated nowadays, each side uses a lot of hyperbole and leaves out all of the facts that don’t support their position.
And as is usually the case, the actual truth lies somewhere between the two side’s misleading talking points.
In forming his decision to issue the preliminary injunction, United States District Judge Dana M. Sabraw cut through all of this and laid out the facts of what is happening (a copy of the full decision can be read at Politico.com):
In this particular lawsuit, there are two types of plaintiffs.
1. First, there are some immigrants who did NOT break any laws in coming here. They presented themselves, along with their children, at a port of entry and requested asylum, just as the law requires. Even though they broke no laws, many of them still had their children removed from them without due process. In the case described in the judge’s decision, the authorities claimed that they could not verify that the child was actually the daughter of the woman, so they separated them, even while both mother and daughter objected. The daughter was sent 1000 miles away to Chicago with very little contact with the mother and very little communication between the mother and the authorities as to what was going on. After months of separation, a DNA test was finally done to determine that they were, in fact, mother and daughter. Why this could not have been done in the first place is unclear.
2. The second type of plaintiff are those who actually did come across the border illegally and once caught, they claimed they were seeking asylum. In this case, the parents did, in fact, break the law, and the parents were subjected to criminal proceedings. During the criminal proceedings and any resulting criminal detention, the children were separated from the parents, rightfully so. The problem arises after the parent has completed their detention and the criminal process, they are then sent to a facility where they await either deportation or further asylum consideration. It’s at this time that the separation of the children from the parent is not warranted without due process. Once they completed the criminal process, the children should be returned to them immediately, as long as there has been no determination that the parent is unfit or would be a danger to the child.
In both cases, the children have remained separated from the parents for months without that due process, and in some cases, the parents have been deported without their children.
After providing, in my view, a thorough and compelling explanation of his reasoning, the judge sided with the plaintiffs and order the preliminary injunction against the defendants (the Trump Administration departments involved).
The injunction requires that the children not be separated from the parents without due process and when they are separated during the criminal proceedings of the parent, they must be reunited upon completion of that process unless due process determines the parent to be unfit or present a danger to the child. Any of the 2000+ children that are currently separated from their parents under such conditions, need to be immediately reunited with the parents (children under the age of 5 within 14 days and those over 5 within 30 days).
The defendants (the Trump Administration departments involved) claimed that President Trump’s executive order solved the problems and, therefore, the injunction is not necessary. The judge rejected that argument as the executive order left too many subjective conditions where the children could remain separated if the departments didn’t have the resources needed to accommodate the return of the children to the parents. The judge’s opinion is that this was not a legitimate reason to violate the constitutional rights provided in the 5th Amendment.
The judge made it clear that this injunction does NOT prevent the Trump administration to continue to aggressively enforce the immigration laws or even from separating the children from the parents. Those who indeed enter illegally can still have their children separated from them while they are undergoing the criminal process and during any criminal detention of the parent. However, once that criminal process is complete, the children must be reunited with the parent. And in the case of those presenting themselves legally to the port of entry and applying for asylum, the children cannot be removed from the parent without due process.
Personally, I agree with the judge. The damage done to children and families with such baseless separations is unconscionable. The judge went further in rebuking the administration for having very ineffective controls and accountability in the entire entire process, stating that they do better in recording and handling personal property from the parents than they do with the children.
We are (or should be) better than this.