Federal Judge Discovers Illegal Immigrant Families Have a Constitutional Right to Stay Together

Public domain image via CBP Flickr photostream

Ever since President Trump’s inauguration, it has become something of a sport among a handful of leftwing federal judges, particularly in the Ninth Circuit, to try to attack policies they do not like by issuing sweeping nationwide injunctions. We saw that three times with the Trump executive order that restricted travel from a handful of failed states and a state sponsor of terrorism. Even though there is no right to travel or immigrate to the United States, an executive order that was fairly black-letter in its legality was resisted, if I may use the word, for a year and a half until the Supreme Court ruled yesterday.

Now the same strategy is being used to try to create an official policy of open borders.

U.S. District Court Judge Dana Sabraw, based in San Diego, issued a preliminary injunction on Tuesday night requiring that nearly all children younger than 5 be returned to their parents within 14 days and that older children be returned within 30 days.

Blasting the Trump administration for what he called “a chaotic circumstance of the Government’s own making,” Sabraw said it was a “startling reality” that no adequate planning had been done before officials embarked on a policy to separate children from parents kept in immigration custody or referred for criminal prosecution. The practice has led to more than 2,300 children being separated from their parents or other family members.

“The government readily keeps track of personal property of detainees in criminal and immigration proceedings,” Sabraw wrote in his 24-page order. “Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainee’s release, at all levels — state and federal, citizen and alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process.”

The injunction was issued over the objections of the Trump administration, which had asked Sabraw to hold off issuing any such mandate while agencies worked to implement the executive order President Donald Trump issued last week purporting to rescind the family separation policy.

The preliminary injunction also blocks deporting parents who have been separated from their children “unless the Class Member affirmatively, knowingly, and voluntarily declines to be reunited with the child prior to the Class Member’s deportation, or there is a determination that the parent is unfit or presents a danger to the child.” The judge also prohibited future family separations, with limited exceptions.

In his decision ordering family reunification, Sabraw said the Trump administration policy intruded on a constitutional due process right not to have one’s family arbitrarily separated.

“The right to family integrity still applies here,” the judge wrote. “The context of the family separation practice at issue here, namely an international border, does not render the practice constitutional, nor does it shield the practice from judicial review.”

This, nothing more or less than a single federal judge deciding that his judgment was better than that of the federal agency that is responsible for enforcing border security. As for the “constitutional due process right not to have one’s family arbitrarily separated,” there are tens of thousands of examples where American citizens are denied that right social workers and child protective services.

If the administration fights this, and they should because polling indicates the nation is against catch-and-release but I’m not sure what the administration’s pain tolerance is on this issue anymore, they will lose in the Ninth Circuit and prevail at the Supreme Court because there is no way that there is five votes to say the executive can’t administer immigration law. The question is how much damage is done in the meantime. What this judge has done is send a signal that says all you need to do to get a free ticket into the US is cross the border with a companion that is under 18.

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