SAN DIEGO -- President Donald Trump's administration told a federal judge Monday that the government will not meet today's deadline for reuniting all of the children age 4 and younger who were separated from their parents at the U.S.-Mexico border as part of a crackdown on illegal immigration in recent weeks.
Justice Department lawyer Sarah Fabian said officials had identified 102 children in that age group and would return at least 54 of them to their parents by today.
Depending on background checks, the number of young children reunited with their parents by today could rise to 59, Fabian told U.S. District Judge Dana Sabraw of California at a hearing Monday morning. In a conference with lawyers Friday, he refused the government's request to extend the deadline.
Sabraw, an appointee of Republican President George W. Bush, has also ordered the government to reunite nearly 3,000 children age 5 and older with their parents by July 26.
Federal officials have been unable to provide precise numbers of separated children and parents to Sabraw, who is presiding over a class-action lawsuit filed by the American Civil Liberties Union on behalf of the separated families.
Lawyers for the government say federal agencies have been unable to locate some parents who were released or deported after being separated from their children. Some are in criminal custody or have criminal records that make them ineligible to immediately claim their children.
One child has not been matched with a parent, Fabian said. The ACLU identified him as a 3-year-old boy.
Also Monday, a federal judge in California sharply rebuked the Justice Department for seeking a modification to a long-standing court settlement. The Trump administration had asked for the court's permission to have U.S. Immigration and Customs Enforcement keep those families in detention until their cases were adjudicated -- a process that typically takes months and would have gone against previously established terms of the settlement.
Justice Department lawyers had filed an application to U.S. District Judge Dolly Gee more than a week ago seeking her approval to detain parents and their children together for unspecified periods of time.
In a seven-page order, the judge called that request "a cynical attempt, on an ex parte basis, to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate."
She noted that the issues at stake had been part of the Flores v. Reno settlement -- which deals with how the government can keep children in custody -- for more than two decades.
"What is certain is that the children who are the beneficiaries of the Flores agreement's protections and who are now in [the government's] custody are blameless. They are subject to the decisions made by adults over whom they have no control," Gee wrote, saying that she rejected the government's request "because it is procedurally improper and wholly without merit."
A Justice Department spokesman did not comment.
At the hearing with Sabraw, officials said they were negotiating and working together to find parents. Most will be released in the United States after being reunited with their children, Fabian said.
"I am very encouraged about the progress," Sabraw said at the hearing.
"This is real progress. I'm optimistic that many of these families will be reunited tomorrow."
Sabraw had ordered the government to provide a list of the separated children's names to the ACLU over the weekend. He scheduled another hearing for this morning.
Fabian said the parents and children will be reunited at an undisclosed location administered by U.S. Immigration and Customs Enforcement and then released to await immigration proceedings.
"ICE will take custody and then release the parent and child together," she said. "They will not remain in ICE custody."
It was the first time the government indicated whether the parents and children would be released or detained together.
PROCESS QUESTIONED
Lawyers for the plaintiffs said they would ask the judge to at least streamline the time-consuming bureaucratic process required for reuniting additional families.
"These kids have already suffered so much because of this policy, and every extra day apart just adds to that pain," Lee Gelernt, an ACLU lawyer, said before Monday's court hearing.
"Tomorrow there will hopefully be more than 50 babies and toddlers reunited with their parents, and that is obviously an enormous victory," he said. But he said those who remain split from their parents are "in for a long process."
Gelernt said in court that the government had taken "significant steps" to reunite families but was still in violation of Sabraw's court order and should be moving more quickly.
"I believe that they can still reunite some [more] individuals by tomorrow," Gelernt said during the hearing.
Under the administration policy implemented in May, adults who otherwise might have been directed into civil proceedings for deportation were instead criminally charged with entering the country illegally. Children were removed from these parents and placed in shelters across the country, sometimes thousands of miles from where the parent was detained.
The two sides revealed in a filing late Monday that they are far apart on protocols for reunification, with the government arguing its practices are necessary under federal law to ensure child safety and the ACLU contending that many are too cumbersome under the circumstances.
One area of disagreement is DNA testing on parents and children, with the government saying it should be the general rule and the ACLU saying it should be done only when no other evidence is available to prove parentage.
Information for this article was contributed by Tony Perry, Maria Sacchetti and Devlin Barrett of The Washington Post; by Miriam Jordan of The New York Times; and by Elliot Spagat and Nomaan Merchant of The Associated Press.
[U.S. immigration: Data visualization of selected immigration statistics, U.S. border map]
A Section on 07/10/2018