US judge weighs expanding lawsuit over family separations to cover more children

A U.S. judge on Thursday appeared open to ordering the government to find potentially thousands of additional children separated from their parents at the U.S.-Mexico border by the Trump administration, which could greatly expand the scope of a lawsuit challenging the separations.

U.S. District Judge Dana Sabraw in San Diego called a January report by an internal government watchdog that found the U.S. government had started implementing its policy of separating families months before it was announced “a very significant event.”

The Office of Inspector General at the U.S. Department of Health and Human Services (HHS) said in a report published earlier this year that the agency had identified many more children in addition to the 2,737 included as part of the class action lawsuit challenging family separations brought by the American Civil Liberties Union (ACLU) last year. In response to the lawsuit, Sabraw ordered the families identified through a court process to be reunited with their children.

The ACLU has petitioned the judge to expand the class to force the government to do a full accounting of any additional separated children.

The premise of the class action lawsuit, Sabraw said, was the “overarching allegation of the unlawful separation” of families by the Trump administration.

“When there’s an allegation of wrong on this scale, one of the most fundamental obligations of law is to determine the scope of the wrong,” he said. “It is important to recognize we are talking about human beings.”

The administration of President Donald Trump implemented a “zero tolerance” policy to criminally prosecute and jail all illegal border crossers, even those traveling with their children, leading to a wave of separations last year. The policy sparked outrage when it became public, and the backlash led Trump to sign an executive order reversing course on June 20, 2018.  

In light of the Inspector General’s findings, as well as investigative reporting, Sabraw said, the current June 26, 2018, cut-off date for cases to be part of the lawsuit becomes “very arbitrary.”

Department of Justice attorney Scott Stewart argued that the ACLU’s request to expand the class would blow the case into an “other galaxy of a task.” The government has argued in court papers that it is too labor intensive to find children who were separated and subsequently released to sponsors before the court order last year.

While most of the outrage last year focused on the Trump administration’s zero tolerance policy, the government has continued to separate families on a smaller scale. In a filing on Wednesday, the government said it had separated 245 children at the border between June 26, 2018, and Feb. 5, 2019

The government said 92 percent of these children were separated due to “parent criminality, prosecution, gang affiliation, or other law enforcement purpose.” Advocates say there is little transparency about the criteria and evidence used to justify ongoing separations.

Reporting by Kristina Cooke; editing by Mica Rosenberg and Leslie Adler