Judge mulls bid to curb power to split families at border

SAN DIEGO — A federal judge said Friday that he was struggling with a request to more narrowly define what behavior justifies separating children from their parents at the border after complaints that the Trump administration has abused discretionary powers to split families under limited circumstances, like criminal history or questions about whether the adult is really the parent.

The American Civil Liberties Union argued the government has been separating families over dubious allegations and minor transgressions including traffic offenses. In a court filing, it reported one parent was separated for having damaged property valued at $5, and a 1-year-old was taken away after an official criticized her father for letting her sleep with a wet diaper.

Justice Department attorney Scott Stewart acknowledged some mistakes but said the government has a good system in place.

U.S. District Judge Dana Sabraw called it a "thorny issue" and didn't rule immediately on the ACLU's request to intervene during a two-hour hearing, which is unusually long for him. He said a parent convicted of assault with a deadly weapon may be "the most loving, protective parent" and present no danger to the child, but is probably unfit to be held in a family immigration detention center.

"It's a unique context," he said.

The administration separated 955 children from their parents from June 26, 2018, when Sabraw halted the practice except in limited circumstances, to July 20, 2019. The government noted that it accounted for a tiny percentage of the more than 500,000 arrests and detentions of people who crossed the Mexican border in families during that time, suggesting restraint.

A two-page memo issued a day after Sabraw's 2018 order by Kevin McAleenan, then Customs and Border Protection commissioner and now acting Homeland Security secretary, describes criteria for separating families, including a parent being convicted of a felony or "violent misdemeanors," having a communicable disease or presenting "a danger to the child."

The Border Patrol's Rio Grande Valley sector in Texas, the busiest corridor for illegal crossings, separates families if a parent has been convicted of crimes including assault, battery, burglary, resisting arrest, hit-and-run and disorderly conduct, Lloyd Easterling, who oversees processing and prosecutions in the sector, said in a court filing last week. "Simple thefts," fraud, minor drug or traffic offenses and driving while intoxicated without an aggravating factor generally do not result in separation.

Allegations of criminal histories or gang affiliations in another country are more challenging to prove, but biometric checks and photographic comparisons usually provide answers, Easterling said.

The two sides argued over how widely to use rapid DNA tests on adults suspected of lying that they are parents of a child. The government says expanding use of the tests, which deliver results in about 90 minutes and have been tested along the Mexican border, would pose financial and logistical obstacles.

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