When the Trump administration last year instituted the travel ban, lawyers sprang into action, filing lawsuits and providing immediate representation to people being detained at airports.
Today, as everyone from the U.S. Chamber of Commerce to the ACLU recoils at the separation of migrant children from their parents, there’s a clear sense that many in the legal community are eager to fight again.
The question is, what exactly can lawyers do?
Of course, they can write letters—21 state attorneys general on Tuesday sent a letter to Attorney General Jeff Sessions calling for an immediate end to family separation, as did dozens of former U.S. Attorneys in a letter of their own.
They can organize protests. The 10,000-member Facebook group Lawyer Moms of America is calling for people to gather at their federal legislators’ offices on June 29 and deliver an open letter stating their opposition to the policy of taking migrant children from their families.
But how can lawyers use their legal training to push back?
It’s telling that the American Immigration Lawyers Association—which along with other groups first raised the alarm about family separations in January–is not making a public call for litigation. Rather, the organization is urging people to contact their members of Congress.
The administration’s “zero tolerance” policy of prosecuting all adults who violate the law by crossing the border illegally doesn’t lend itself to an obvious legal challenge. As the Department of Homeland Security put it, “When adults, with or without children, unlawfully enter this country, there must be a consequence for breaking our laws.”
When the parents get caught, they’re transferred to U.S. Marshals Service custody. The kids don’t go with them to jail. Instead, they’re classified as “unaccompanied aliens” and transferred to Department of Health and Human Services custody. From the government’s perspective, this is simply a consequence of the lawful detention of the parent.
So how to attack it in a lawsuit?
A suit filed Tuesday in U.S. District Court for the District of Columbia may show one path, and be a harbinger of more challenges to come.
John Shoreman, a name partner at McFadden & Shoreman in Washington, D.C., sued federal immigration authorities on behalf of Beata Mejia-Mejia, an asylum-seeking Guatemalan woman who had her 7-year-old son taken from her at the border.
As first reported by The Daily Mail, she’s suing to be reunited with her son, whom she has not seen in nearly a month. She doesn’t even know where he is being held.
“Without any assertions of abuse, neglect or parental unfitness, and with no hearings of any kind, the government is detaining these young children, alone and frightened, in facilities often thousands of miles from their parents,” the complaint states.
Mejia-Mejia and her son crossed the border in Arizona on May 18 and asked for asylum, citing domestic violence (which Sessions on June 11 rescinded as grounds for protection).
Mother and son had been in a holding cell for two days when border agents took the boy away, but refused to say why.
After Mejia-Mejia passed her “credible fear” screening interview—which meant she was never indicted for crossing the border illegally–she was released from detention on bond. But she still doesn’t have her son.
Her suit invokes the Fifth Amendment, the International Convention on Civil and Political Rights, the United Nation Convention Relating to Status of Refugees and the International Child Abduction Convention. “The government has no legitimate interest in separating Ms. M and her child,” the complaint states.
The ACLU in a pending class action in the Southern District of California casts a wider net, suing on behalf of all parents who are or will be detained by immigration authorities, and who had their children separated from them (absent a demonstration in a hearing that the parent is unfit or presents a danger to the child, that is).
In an amended complaint filed in March, the ACLU argued that the family separation practice violates class members’ substantive due process right to family integrity, the federal asylum statute and is arbitrary and capricious.
Earlier this month, U.S. District Judge Dana Sabraw rejected the asylum law and Administrative Procedure Act claims, but let the suit move forward on due process grounds.
His opinion contains powerful language that may foreshadow a ruling against the policy.
“For plaintiffs, the government actors responsible for the ‘care and custody’ of migrant children have, in fact, become their persecutors,” Sabraw wrote on June 6. “These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the ‘exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective.’”
Sabraw, a George W. Bush appointee, continued, “Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue ‘shocks the conscience’ and violates plaintiffs’ constitutional right to family integrity.”