Federal Judge: Separating Families at Border May Violate Due Process Rights

By Christopher Coble, Esq. on June 11, 2018 | Last updated on March 21, 2019

Last month, Attorney General Jeff Sessions announced a 'zero-tolerance policy' for illegal entry into the United States, under which immigration enforcement officials would forcibly separate immigrant children from their parents. "If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law," Sessions said at the time. "If you don't like that, then don't smuggle children over our border."

Last week, a federal judge said that policy is "brutal, offensive, and fails to comport with traditional notions of fair play and decency," and found that it may be unconstitutional.

Illegal Immigration?

U.S. District Judge Dana Sabraw declined to dismiss a class action lawsuit filed by the American Civil Liberties Union on behalf of two immigrant mothers who were separated from their minor children for several months. The mothers were seeking asylum in the United States, and the suit challenged the practice of separating children from the parents at the border on both statutory and constitutional grounds.

Judge Sabraw ruled that, while immigration officials don't violate the Asylum Statute or Administrative Procedure Act by separating minors and parents while cases are being reviewed, the practice may violate families' due process rights under the Constitution:

These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the "exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective." Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue "shocks the conscience" and violates Plaintiffs' constitutional right to family integrity. Accordingly, Defendants' motion to dismiss Plaintiffs' due process claim is denied.

Illegal Separation?

The court, at this point, has not ruled definitively on whether separating parents and children at the border is unconstitutional. Such a ruling may or may not come later. The ACLU is also asking for class action certification so that other families that have been separated by U.S. Immigration and Customs Enforcement officials can join the lawsuit, and that the practice be enjoined until the court can rule on its constitutionality. Both those requests are also pending.

If you've been reported to, contacted by, or detained by ICE, get in touch with an immigration attorney immediately.

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