Will An ACLU Lawsuit Help Reunite Parents And Children Separated At The Border?

"The more and more people that hear that this is going on, the more and more outrage there is."

The United Nations human rights office has told the Trump administration to "immediately halt" its practice of separating immigrant children from their parents at the border.

News of the U.N.'s position comes as the American Civil Liberties Union (ACLU) awaits a ruling on its national class action lawsuit to stop the very same practice. President Donald Trump has come under fire for his "zero tolerance policy" on the border, which has resulted in immigration officers imprisoning border crossers, including some who are entering legally, and putting children and parents in separate facilities.

"The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles," U.N. spokesperson Ravina Shamdasani said at a briefing in Geneva. "The child's best interest should always come first."

While the administration maintains it is doing its best to slow illegal entry into the United States, many of the migrants being separated from their children are not entering illegally. As The New York Times reported in April, hundreds of children are being taken from parents, even when some enter at official ports of entry and request asylum, which is not illegal. With scrutiny of the practice ramping up, President Trump has repeatedly claimed that the family separation is the result of a law passed by "the Democrats," but no such law exists.

Nikki Haley, the United States ambassador to the U.N., responded harshly to the criticism, declaring in a statement that "Neither the United Nations nor anyone else will dictate how the United States upholds its borders."

Border Patrol vehicle patrolling along the fence of the international border between San Diego, California and Tijuana, Mexico
Border Patrol vehicle patrolling along the fence of the international border between San Diego, California and Tijuana, Mexico Shutterstock /  Sherry V Smith

Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project, spoke to A Plus about the "unprecedented family separation policy on the border," explaining that no other administration has done this and "it's absolutely false that any law requires family separation."

"The government has been very careful not to say exactly which law they think requires separation, but any law that they could conceivably point to has been on the books for years," Gelernt said. "So if it actually requires separation, a prior administration would have also had to have been doing this separation on a widespread scale, and no other administration has done it. It's simply not true."

The ACLU filed a class action lawsuit against the Trump administration's practice of forcibly separating families on the border in March, broadening a previous lawsuit to reunite a mother from the Democratic Republic of the Congo and her 7-year-old daughter, who were separated in San Diego. Gelernt estimated to A Plus that between 1,500 and 2,000 children have already been separated from their parents, a number he based on affidavits signed in the ACLU lawsuit, a The New York Times report, government numbers provided to The New York Times, and estimates that government lawyers have not disputed in court. The number is growing every day, he added.

"This issue is not divided along normal immigration lines," Gelernt said. "Conservative and liberal commentators are just repulsed by the idea that a 2 or 3-year-old is being taken away from their parents and sitting in a facility without their parents."

Attorney General Jeff Sessions and Secretary of Homeland Security Kirstjen Nielsen have defended the policy, saying that if parents don't want to be separated from their children they shouldn't bring them when they cross the border. They've also said that sometimes, the immigration officers are unsure if the person accompanying a child is actually their parent because they have lost their paperwork, in which case they may be separated. 

Gelernt says these defenses don't hold up. First, he noted that the ACLU has clients who have allegedly been separated from their children after entering legally through a port of entry-seeking asylum. Second, he said that even if the administration is intent on prosecuting asylum seekers for crossing illegally, it's still only a misdemeanor that results in a few days of jail time. When parents are being released, though, they are not being reunited with their children, who have already been sent to a different facility. Finally, he added that if the government is genuinely concerned about whether a child is with their parent, the government can administer a quick (and cheap) DNA test with a swab of the mouth to confirm the two are related. 

With its lawsuit, the ACLU is hoping to stop the practice immediately and reunite children who have already been separated with their parents. The outcome will depend largely on the scope of the ruling, though, and Gelernt said there is no clear timeline for when the ruling will come. The case has already been argued in court.

Gelernt also seemed encouraged by the amount of attention it's now getting. He was excited to see the U.N. enter the conversation and believes the Trump administration was not expecting or prepared for the blowback from the public. 

"It's great that its getting attention worldwide," Gelernt said. "I think it's extremely helpful to put it in this larger universal context. The more and more people that hear that this is going on the more and more outrage there is."

Shutterstock / Krista Kennell

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