Constitutional Law

Separating asylum-seeking immigrant families violates due process rights, federal judge says

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Traffic at San Ysidro Port of Entry, entering the United States from Mexico. JohnGK /

Separating asylum-seeking mothers from their children is brutal, offensive and a violation of the due process clause, according to a federal judge in San Diego.

In a decision Wednesday, U.S. District Judge Dana Sabraw refused to dismiss a would-be class action suit that challenges the government practice on constitutional grounds, report Courthouse News Service, the New York Times and Slate. The American Civil Liberties Union had filed the suit on behalf of two immigrant mothers separated from their minor children for several months; its press release is here.

See also: UN human rights office calls on Trump administration to stop separating immigrant families

Sabraw allowed the due process claim but tossed statutory claims alleging violation of the federal law protecting asylum seekers and the Administrative Procedure Act.

The plaintiffs are challenging the government’s separation of immigrant parents and their minor children when both are held in immigration detention and there is no danger the parent is unfit, Sabraw said. Both mothers are seeking asylum—an important point, because U.S. asylum law arises out of international agreements, he said.

In these circumstances, Sabraw said, there are sufficient allegations of government conduct that shocks the conscience, a standard for a due process violation. “These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child,” Sabraw wrote.

See also: Forcibly separating families ‘violates basic standards of human decency,’ ABA president says

“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,” he said. “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.”

The ACLU’s motion for class certification and an injunction is pending.

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