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January 22, 2020 – The Trump administration received an unfortunate victory in the case against their family separation policy.

On January 13, 2020, Federal Judge Dana Sabraw sided with the government in a lawsuit challenging continued separations at the border. Although the judge ordered an end to most family separations in 2018, he has allowed families to be separated under certain exceptions.

These exceptions have let the practice continue on a smaller—yet still devastating—scale. Over 1,000 children have been separated since the judge’s earlier ruling.

Under the administration’s “zero tolerance” policy, immigrant parents were systematically separated from their children at the U.S.-Mexico border and prosecuted for entering the United States without authorization. The American Civil Liberties Union (ACLU) filed a lawsuit shortly after the policy was announced in April 2018. Judge Sabraw ordered an end to the policy two months later. He also ordered the reunification of the over 2,800 families who had been separated under the policy.

He allowed, however, for separations when there is “a determination that the parent is unfit or presents a danger to the child.”

Since that 2018 decision, thousands of children have been separated. The government relies on different “exceptions” to continue the separations.

In some cases, the government cites the parent’s criminal history or health condition. In others, they have expressed doubts of a legitimate parent-child relationship. They allege criminal history—even if the offense took place years ago and was non-violent. It can be as simple as a traffic citation. In some cases, the parent has not been charged with a crime but is simply suspected of one by the U.S. government.

The government often does not provide an explanation for the separation to the parent or their attorney (if they have one).

It’s possible there are a small number of cases in which it is in the best interest of a child to be separated from a parent. However, these determinations should be made by child welfare experts instead of immigration officials. Furthermore, the parent and their attorney should receive evidence for and a written explanation of that determination.

The ACLU challenged the continued separations in 2019, arguing that the government was still systematically separating children from their parents. The organization requested the judge set new family separation guidelines and appoint an independent monitor to supervise the decisions.

In his recent decision, Judge Sabraw said these separations fall under the exceptions he originally allowed. Going forward, immigration officials will continue to be able to use their discretion in deciding when separation is necessary. Officials can even go beyond “just the fitness and danger that a parent may present to his or her own child” when making a determination.

Judge Sabraw did order the government to conduct DNA testing for cases in which the separation is due to doubts of a parent-child relationship.

There are 23 children separated under the 2018 zero tolerance policy who have yet to be reunified with their families. There are likely many more from the group of 1,556 children separated before the policy’s official implementation. And there is no telling how many will be separated under the administration’s “exceptions.”

The government should take steps to ensure that safeguards are in place to prevent any future separations from happening.

ImmigrationImpact.com is a project of the American Immigration Council