The federal judge overseeing the reunification of more than 2,600 migrant families is facing a new question: whether parents deported under the Trump administration's "zero tolerance" policy can return to the U.S.
In a court document filed Thursday, the Justice Department argued that the nearly 400 parents who were deported without their children were sent back legally and must remain in their home countries. Their only option for reuniting with their children, Justice lawyers wrote, would be for the child to be deported and the family reunited in their home country.
Justice lawyers even indicated that the ACLU, which filed the class-action lawsuit on behalf of separated families, had agreed to that arrangement. But ACLU attorneys countered in a separate court filing that they "do not understand" why the Justice Department would make such a claim.
The ACLU attorneys wrote that many deported parents will request for their child to be returned to them in their home country, but others will request, and should be allowed to, return to the U.S. to make proper asylum claims for themselves and their children.
"Some separated families can only be made whole by returning the parent to the United States," the ACLU wrote.
Lawyers representing separated families in several lawsuits around the country contend that many parents only agreed to be deported because they were given inaccurate legal information by federal immigration agents. That's partly why attorneys have been trying to contact all 366 parents who were deported to Guatemala, Honduras and El Salvador, to better understand what they were told and how they reached their decisions.
"In some cases, removed parents may not have availed themselves of their right to seek asylum because they were misled or coerced into believing that asserting their asylum claim would delay or preclude reunification," with their children, the ACLU attorneys wrote in their filing Thursday.
U.S. District Judge Dana Sabraw is scheduled to have a hearing in his San Diego courtroom on Friday to decide which side is right.
Ever since he deemed the family separations a violation of due process in June, Sabraw has been focused on reuniting as many of the 2,654 children separated from their parents as quickly as possible. As of Thursday, the administration had reunited 1,616 children with their parents and connected another 473 with other sponsors.
The judge is now focused on the 366 whose parents were deported. He initially scolded the administration for claiming that the federal government was not responsible for finding those parents, ruling that the administration was "100 percent" responsible for doing so.
Sabraw later praised the administration when it presented a comprehensive plan to locate those parents, which involved coordination between four federal agencies and three foreign governments. But the judge had not ruled on what will happen when those parents are located.