A federal judge pressed government lawyers Thursday over whether the administration should be required to identify the thousands of children and parents who were separated at the southern border and released from government custody before June 26, 2018.
The exchange came during a hearing for Ms. L et al. vs. Immigration and Customs Enforcement et al., an ongoing family separation lawsuit.
"The fundamental premise of the lawsuit is that there's an unlawful separation practice initiated by this administration," said Judge Dana Sabraw.
"The June 26 date is completely arbitrary viewed in that light," he added, referring to the date when he issued a preliminary injunction blocking most family separations at the US-Mexico border and ordering that those already separated be reunited.
Scott Stewart, deputy assistant attorney general, argued that doing so would dramatically change the case and create a burdensome task for the government.
"It puts the government in a very, very difficult job," he said.
Sabraw stopped short of issuing a decision, but said one would come soon.
The inquiry stems from a Health and Human Services inspector general report in January that found that thousands more children had been separated than previously reported. HHS and the inspector general's office were unable to identify exactly how many more because there were "significant challenges in identifying separated children."
Plaintiffs in the case requested that the scope be clarified to include those children.
The American Civil Liberties Union originally filed the case against the Trump administration last year on behalf of a Congolese woman, referred to as "Ms. L," seeking asylum in the US who was separated from her 7-year-old daughter. The case was later expanded to become a class action lawsuit.
"A case always takes into account further developments," said Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project and one of the plaintiff attorneys, during the hearing. "This one is a bombshell that no one could've really anticipated."
Last month, Sabraw ordered the government to respond to the HHS IG report, which also revealed the disarray within HHS as it experienced an influx of children in need of care. The administration defended its efforts to identify and reunify children who had been separated and included two declarations from officials, one of whom has since testified before a House Oversight subcommittee.
Sabraw acknowledged that response, but focused on what he called "the overarching allegation of the unlawful separation."
"That's the legal question at issue," he said. "Shouldn't the class include everyone who has been allegedly unlawfully separated?"
Sabraw made clear that doing so was not a matter of reunifying families but rather accounting for those who had been separated.
On the eve of the hearing, the government provided an updated count of the children who have been reunited since last June in its regular status report. As of February 13, the government has discharged 2,735 of 2,816 possible children who fell under the Ms. L lawsuit, according to the court filing.
It also noted, however, that between late June 2018 and early February, the administration identified at least 245 children who had been separated.
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