With Thursday's deadline looming, and thousands of immigrant children still separated from their parents at the border, experts say the government might be forced to delay reunifications even further.
A federal judge ruled last month that the government had until Thursday to reunite immigrant children ages five to 17 with their parents. By Monday, only 879 of these children had been reunited with their parents, with nearly 1,700 reunions to go, according to government data obtained by the Texas Tribune.
Advocates predict the government will not meet the deadline, especially considering its track record: Two days after the July 10th deadline to reunite children younger than five with their parents, the government had facilitated reunions for just over half of the 103 detained toddlers.
The agencies that created this separation problem, prompted by the Trump administration's "zero tolerance" policy for border-crossings, have struggled to remedy it. This may be due to a lack of organization within the Departments of Health and Human Services and Homeland Security; for example, some records identifying family members have disappeared or been destroyed, two officials with the DHS told the New York Times. (HHS staff declined to comment on this story.)
Compounding matters for these separated families, the administration has also labeled certain parents "ineligible" for reunification with their children, including those who are currently in prison or whom the government cannot locate. These restrictions apply to more than 900 parents—many of whom may have already been deported, the Texas Tribune reports.
If the government misses Thursday's deadline, as it did earlier this month, the federal judge has little means to enforce the order.
"You can't throw the government in jail," says Steve Yale-Loehr, an immigration law expert. "It's hard to do too much as a court, other than keep the hearings public ... and try to urge the government to reunify the families as soon as possible."
Yale-Loehr discusses four possible outcomes should the government miss Thursday's deadline.
First, the Federal Judge Could Extend the Deadline for Reunification
This would give the Department of Health and Human Services more time to reunite families—a move that HHS Secretary Alex Azar has already endorsed.
Yale-Loehr says an extension is the most likely outcome. In an interim hearing earlier this week, United States District Judge Dana Sabraw praised the government for its efforts so far. "I think the judge realizes how difficult it is to reunify families," Yale-Loehr says. The length of this extension remains unclear.
The Judge Could Appoint an Outside Monitor to Oversee the Process
Sabraw might order this alongside an extension as a way to "keep hounding the government" to speed up the process, Yale-Loehr says. This way, the court wouldn't need to check up on a daily basis. Yale-Loehr points to a 1997 class action lawsuit on behalf of detained immigrant children, which resulted in the Flores settlement. In this case, the government allowed outside attorneys to ensure compliance as part of a settlement.
The Judge Might Also Extend the Temporary Stay on Deportations of the Separated Families
After the July 10th deadline passed, Sabraw imposed an order halting the deportations of families that had been forcibly separated through July 23rd. With the next deadline looming, this injunction could be open for renewal.
At the time, lawyers for the American Civil Liberties Union sought the one-week stay on deportations, arguing that it would give parents time to make an "informed, non-coerced decision if they are going to leave their children behind." Extending the order would give families a chance at asylum after reunification.
In a Less Likely Move, the Court Could Hold the Federal Government in Contempt
This would force the agencies to comply with due process, but it would not necessarily speed up the reunification process, according to Yale-Loehr.
"Contempt is reserved for egregious situations," Yale-Loehr says, such as when an individual intentionally disobeys a court order. There's no telling when the government's failure to comply with the deadline becomes "egregious." It could be in a couple of months, a year, or—most likely—not at all.
Still, the trouble will not end with reunification. Immigration advocates worry that separated families will suffer from the psychological trauma of separation, on top of violations of their due process rights.
The ACLU and other legal organizations are also collecting declarations and affidavits as to what happened to families at the border, possibly to build a case arguing that the children and parents were coerced into abandoning their asylum claims as a precondition for reunification.
"The Trump administration's lack of transparency is now bordering on stonewalling," Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project, said in a statement. "And no one should forget that the government's claim that it will meet the reunification deadline is based on its exclusion of parents it has deported or can't locate, as well as on its unilateral, unchecked decision of who is eligible to be reunited or not."