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Immigration Law

Judge Poised to Bar Removal of Asylum-Seeking Children

Britain Eakin, CNS, July 31, 2018 - "A federal judge said Tuesday he would issue an order temporarily barring deportation of reunified families unless the government agrees to do so on its own.

U.S. District Judge Paul Friedman issued a temporary restraining order from the bench, then rescinded it during the same hearing in a federal class action challenging the immediate removal of reunified families who had been separated at the border under the Trump administration’s “zero tolerance” immigration policy.

Friedman said he would hold off on issuing the order after Department of Justice attorney Scott Stewart asked for several hours to negotiate the matter with the government.

Friedman said any such order would remain in effect until 48 hours after he decides whether to transfer the case, as the government requested Monday, or to let it proceed.

The immediate lawsuit, filed on behalf of young, asylum-seeking immigrants, claims the Trump administration is violating their due process rights by deporting children before they can pursue their own asylum claims.

A waiver form that immigration officials are presenting to parents asking them to choose between immediate removal after reunification, or being deported without their children, sits at the center of the lawsuit. A third option on the form, Friedman said Tuesday, allows the parents to speak to an attorney before making a decision.

Friedman proposed transferring the case to San Diego to be joined with the California class action Ms. L. v. Immigration and Customs Enforcement, which U.S. District Judge Dana Sabraw is presiding over.

He also suggested waiting for Sabraw to rule on a pending motion to stay deportations.

“Why don’t we wait and see what he says about it?” Friedman said just minutes into the hour-long hearing late Tuesday afternoon.

Friedman noted that Sabraw is weighing how long families need to be reunited before the government can take any removal action.

“They need time. Days,” Friedman said. “And Judge Sabraw is going to determine how many days.”

But Justin Bernick with the firm Hogan Lovells argued Tuesday that Sabraw wouldn’t have jurisdiction over the heart of his clients’ case, which is asking the court to review the immediate deportation policy that Bernick says only the District of Columbia can consider.

The issue of immediate deportations is not before Sabraw, Bernick added, noting that several other cases that have been transferred to him and consolidated with the Ms. L litigation pertain only to family reunification.

This case is about what happens to the children after that and what process is due to the children once they are reunified with their parents, Bernick said.

“That’s why we brought the claims here,” Bernick added.

According to Bernick, the government insists that the waiver form overrides the asylum rights of the children. The jurisdictional bar in the Southern District of California would preclude children with removal orders from pursuing asylum claims, Bernick added.

“This question is just not in front of Judge Sabraw,” he said.

Department of Justice attorney Stewart meanwhile denied that the government has an official, written policy that the court can even review.

Bernick challenged that assertion after the hearing.

“We think there’s absolutely a written policy. In fact, if you look at the documents the government has filed, they admit there’s a written policy,” Bernick told reporters.

“The fact that there could be a uniform policy being applied to every child who’s in this situation around the country, and that’s just happenstance – there’s no policy behind that – is a little hard to believe,” he added.

Back in the courtroom, Friedman appeared uncomfortable letting the case proceed in the District of Columbia.

But he appeared equally uncomfortable taking the government at its word that it would temporarily stay deportations while he decides what to do.

The government agreed to stay removals in relation to this case only through midnight Tuesday.

Stewart said in court that the government would likely agree to further halt removals, but said it might take some time for such an order to reach the rank-and-file immigration officials in the field.

“That doesn’t sound like much of an assurance,” Friedman said.

Bernick interjected, “This is essentially no deal at all.”

In his view, the government’s bid to transfer the case amounts to an easy disposal of it.

Earlier in the hearing, Bernick said any gesture by the government to stay removals temporarily is meaningless if they plan to use the waiver forms to shut down asylum claims.

“This waiver says nothing about a child’s right to pursue asylum,” Bernick said.

Stewart continued to push for a transfer.

“Your honor, I think you should transfer this case immediately to Judge Sabraw,” he said.

Because there is no written policy to challenge in the case, Stewart said there is no reason to keep the remaining due process and Administrative Procedure Act claims in the District of Columbia. Any federal court can hear those claims, he said.

“There’s just a real risk for conflict and tension if these things don’t end up in front of Judge Sabraw,” Stewart said.

Friedman said he would decide by Friday whether to transfer the case."