The ACLU said Tuesday that the Trump administration is still wrongly separating children from their parents at the border and asked a federal judge to order that kids be kept with adults even in cases when the government says there are serious health concerns or threats to the child’s safety.
Lawyers said the government is playing fast and loose with those determinations, separating a child from an HIV-positive parent in one case or using drug offenses as enough of a reason to separate children.
“Defendants are even separating young children based on such offenses as traffic violations, misdemeanor property damage and disorderly conduct violations,” the American Civil Liberties Union said in its latest filing with Judge Dana Sabraw.
The ACLU said over 12 months more than 900 children were separated from parents found attempting to jump the border, including 185 cases in which a child was younger than 5 years old.
Of the 900 cases, 678 separations were because of criminal records, the ACLU said, using the latest data provided by the government. The rest were based on parents’ gang ties, concerns over child safety, parental illness or questions about whether the adult really was the parent.
The ACLU challenged 44 cases in which the government said the adult had been charged with assault, and three cases where an adult’s criminal record consisted of a DUI offense.
“A 2-year-old child was separated from his father based on ‘Public Intoxication Arrests and a DUI,’” the ACLU complained.
In another instance, the group wondered about a father who was separated for a criminal record of “malicious destruction of property value $5.”
The Justice Department declined to comment on the ACLU’s new filing.
Acting Homeland Security Secretary Kevin K. McAleenan told Congress this month that separations are rare, saying fewer than 1,000 have faced separation out of 450,000 people who crosses as families.
“This is in the interest of the child,” he said.
Mr. McAleenan did say that HIV alone didn’t sound like enough of a reason to pull a child from a parent’s custody, but said there could have been other factors.
Top Democrats fired off a letter to Mr. McAleenan on Monday expressing “profound concern” with the separation and demanding a clearer answer on what’s going on. They said HIV is not deemed a communicable disease, which puts it outside the valid reasons for separation.
More broadly, the family separations remain a black eye for the Trump administration, which is struggling with credibility among congressional Democrats.
The separations grew out of the administration’s zero tolerance border policy, which stepped up prosecutions of people who jumped the border illegally. Previously, single adults sometimes were charged, but parents bringing children rarely were. Under zero tolerance, prosecutions jumped to about half of all illegal crossings.
But because the criminal justice system doesn’t have family cells, children were separated and sent to federal health officials.
The outcry was overwhelming, with even first lady Melania Trump suggesting the separations were wrong.
Mr. McAleenan says the zero tolerance policy was “well intended,” but failed because it “lost the public trust.”
Judge Sabraw in June 2018 issued a ruling halting most family separations and ordering the administration to reconnect the thousands who had already been divided. But he said there were situations where separations might still be warranted, such as criminal records.
It’s those cases that the ACLU is now arguing.
Of the nearly 3,000 children separated during the original zero-tolerance policy, the government, the ACLU and other interested parties have tracked down parents in every case and in most instances have determined whether the parents want the children returned or to stay in the U.S.
The ACLU is battling over 21 parents who were deported but who want to be admitted back into the U.S. to further argue their cases.
Judge Sabraw on Monday asked the government to provide more information on why the parents were deported.
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