The government should not be able to declare immigrants with any criminal history, no matter how minor their crime, unfit parents and separate them from their children, the ACLU said. The organization argued that the court's June 2018 nationwide injunction permitted the government to separate families in cases where the parents' criminal history indicated they were a danger to their children, but not merely when parents had any criminal history.
"Plaintiffs ask the court to provide further guidance on the permissible criteria to separate families based on criminal history or parental fitness, and to reaffirm the basic premise of this court's preliminary injunction: that children should not be taken from their parents absent a determination that the parent is genuinely unfit or presents a true danger based on objective facts," the ACLU's motion states.
The ACLU argued that the injunction carved out an exception for immigrants with criminal histories to prevent delays in the overall reunification process. But the government is still expected to abide by child custody standards, under which separation can be justified only in cases "where the criminal history is so significant that it bears on whether the parent is a danger to the child or is an unfit parent."
Many of the affected parents, however, did not commit crimes that would suggest they are a danger to their children, the ACLU said. Rather, they have committed traffic violations, misdemeanor property damage, and disorderly conduct violations. Others have only been accused and not convicted.
The ACLU also cited reports that parents have been separated from their children simply based on their lacking parenting skills or "on the most dubious assertions that the parent has not sufficiently proven his or her relationship to the child."
"Given the ongoing and potentially permanent harm to these children, plaintiffs request that the court make clear that defendants may not separate based on criminal history regardless of the severity of that history or the extent to which it bears on the parent's fitness, and that defendants must take more careful steps to verify parentage," the motion states.
Lee Gelernt, counsel for the plaintiffs and deputy director of the ACLU's Immigrants' Rights Project, said the administration should not be permitted to continue separating families.
"It is shocking that the Trump administration continues to take babies from their parents," he said. "The administration must not be allowed to circumvent the court order over infractions like minor traffic violations."
The parents are all covered by a class action in California federal court known as Ms. L., which was filed last year in response to the U.S. Department of Homeland Security's practice of separating families at the border to prosecute and detain the adults. In June 2018, U.S. District Judge Dana Sabraw ordered the federal government to reunite all class members with their children, and the government has managed to locate and reunite more than 2,000 separated kids with their parents.
The attorneys for the class later struck a deal, approved by the court in November, requiring the government to reconsider certain rejected asylum petitions. That settlement agreement also left open the possibility for parents who were already deported to be returned to the U.S. in "rare and unusual" cases.
In March, Judge Sabraw expanded the class to include families who were separated before the administration announced the new enforcement policy, including thousands of children who passed through government custody and had been released at the time of the June 26, 2018, injunction order.
A representative for the U.S. Department of Justice did not immediately respond to requests for comment on Tuesday night.
The plaintiffs are represented by Lee Gelernt, Judy Rabinovitz, Anand Balakrishnan, Daniel Galindo, Bardis Vakili, Stephen Kang and Spencer Amdur of the American Civil Liberties Union.
The federal government is represented by Sarah B. Fabian of the DOJ's Office of Immigration Litigation.
The case is Ms. L. et al. v. U.S. Immigration and Customs Enforcement et al., case number 3:18-cv-00428, in the U.S. District Court for the Southern District of California.
--Additional reporting by Suzanne Monyak. Editing by Haylee Pearl.
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