Here’s What to Know About the Status of Family Separation at the U.S. Border, Which Isn’t Nearly Over

September 21, 2019

Attorneys working on the ground along the southern U.S. border estimate nearly 1,000 children have been separated from their parents since the practice was declared over by the Trump Administration in June 2018. Court records show that family separation has become increasingly complex as thousands of children’s reunification now depend on factors including when they were separated, where their parents are now, and if they are considered plaintiffs in a class action lawsuit against the Trump Administration.

In Harlingen, Texas, attorney Jodi Goodwin says just over two weeks ago she reunited a migrant father with his 7-year-old child after they had been kept apart for 14 months. The child is one of 2,814 possible defendants in a class action lawsuit against Immigration and Customs Enforcement (ICE), a case known as Ms. L v ICE, which represents the children separated during the implementation of the Administration’s Zero Tolerance policy. Even though thousands of children separated under that policy have so far been reunited, 27 remain in government custody as of September 6, according to court records.

Attorney Efrén Olivares in McAllen, Texas, says he recently saw the separations of two children from their parents — over a year since June 2018, when President Trump signed an executive order ending family separation. Later that month, a federal judge ordered the children separated during Zero Tolerance to be reunited with their parents or sponsors.

The ACLU argued in federal court Friday that the children separated since that injunction have been wrongfully taken from their parents in violation of the administration’s own executive order, saying the separations have been ordered on grounds including a parent’s minor criminal offense — such as a parking violation or DUI. The ACLU called on the judge hearing the case to block such separations — Lee Gelernt, the lead attorney in the case, tells TIME the ACLU estimates about 1,000 currently-separated children fall into this category — and only allow in instances when a parent is deemed a danger to a child. (For example, having a criminal record of child abuse.)

“We’ve had instances of fathers separated from their children because the last time the father was in the U.S. years ago, he got a ticket for driving with an expired license,” Olivares says. “He was arrested, and therefore now has a criminal conviction on his record, and that is the justification for the separation.”

Under the administration’s policy, children can be removed from parents who are facing criminal prosecution for any charges.

“I think that we’re looking at the biggest moment in the case since it began,” Gelernt told the judge at the Friday hearing. ICE tells TIME it will not comment on pending or ongoing litigation, but deputy assistant attorney general Scott Stewart called Gelernt’s proposal “an irresponsible approach” at the Friday hearing.

In Judge Dana Sabraw’s closing statements, he expressed concerns over a blanket implementation of the ACLU’s proposal that criminal records be discounted as a justification for separation. Sabraw noted a hypothetical situation in which a father with an assault charge on his record could still be a loving and dedicated parent, but that such a violent criminal past may, or should, still weigh on the court’s decision whether or not that father can be detained in the same facility as his child, and other children.

Judge Sabraw, of the Southern District of California, has not yet issued a ruling.

The hearing is one of many legal challenges the Trump Administration has faced since family separation under the administration’s Zero Tolerance Policy began in April 2018. The ACLU estimates that more than 2,000 children were separated before the official start of Zero Tolerance in addition to the thousands separated since Zero Tolerance began.