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Judge upholds decision to deny family reunification to two parents with ‘significant’ criminal history

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A San Diego judge has denied the request of two migrant parents wishing to reunite with their young children, ruling Wednesday that the federal government has the discretion to determine if their criminal backgrounds present a possible danger.

The seriousness of a parent’s criminal history is the latest issue to be challenged as part of the massive, court-ordered effort to reunify some 2,600 families that had been separated at the border.

The case of Ms. Q. — accused in an outstanding arrest warrant in El Salvador of being a gang member — and Mr. C. — with a misdemeanor conviction from eight years ago for swinging a machete at his wife — were the first tests.

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While U.S. District Judge Dana Sabraw did not make a ruling as to whether either parent was unfit or a danger, he said the government appears to have “vetted the parents in good faith” and does not plan to take that discretion away.

The ruling lays the groundwork for how challenges might proceed in as many as 27 other cases where reunification was withheld due to “significant” criminal histories.

In a court hearing Friday, attorney Lee Gelernt of the American Civil Liberties Union indicated there are parents in this category with seemingly more minor crimes, such as DUI and illegal entry, that would be challenged.

“Where this much is at stake for children, there needs to be more than what the government has done,” Gelernt argued.

When Sabraw first ordered the family reunifications as part of a preliminary injunction on June 26, he excluded from the class all parents with criminal histories. The blanket exclusion was a way to get the reunifications under way quickly, with the suggestion to government officials to be over-inclusive in granting reunifications. Sabraw at the time left open the possibility for individual challenges.

In his short ruling Wednesday, Sabraw noted that it appears the government has been reasonable in its examination of criminal histories due to the relatively small number of parents excluded.

“The record indicates Defendants have vetted these parents in good faith and made principled decisions in light of their criminal history and overarching concerns regarding safety of their children and the public,” the judge wrote.

Sabraw also noted that the government has the authority to decide who to detain and who to parole, and that nothing in the family separation litigation aims to limit that power.

In the case of both Ms. Q. and Mr. C., authorities determined neither were appropriate to be reunited with their children and then held at family detention centers, where other youth are housed.

“These are not hard cases,” U.S. Department of Justice attorney Sarah Fabian argued in a motion.

Ms. Q. entered the U.S. illegally at the Rio Grande Valley in Texas in March with her 3-year-old son, J. While in holding cells in Customs and Border Protection custody, the boy became sick, causing him to vomit with bouts of diarrhea, she reported.

The next morning, as the boy was sleeping in his mother’s arms, the two were separated due to her criminal warrant out of El Salvador. She was taken to a processing center in Laredo, Texas, while he was transferred to a shelter in Chicago.

The warrant accuses her of affiliation with the MS-13 gang but does not include specific allegations of criminal activity or statements of probable cause, the ACLU argued.

An attorney in El Salvador investigated further and found that the warrant appears to stem from a larger anti-gang operation that involved an incident at the house where she had been renting a room.

Ms. Q. claims that she didn’t know the other occupants well and never saw or suspected gang activity there. In July 2016, police raided the home with guns drawn. They questioned her about gang involvement, which she denied.

Days later, she was beaten in the face by apparent gang members, likely because they were aware of her police questioning, she reported. The attack caused significant injury to an eye.

While in ICE custody Ms. Q. passed a “credible fear” test, the first step in the asylum process. Later, the judge in her immigration hearing — after asking the government for more evidence but getting none — determined she was not a danger.

“I do not have sufficient evidence or information in front of me upon which to find that she is a danger to the community,” the judge stated. He did, however, deny her bond after finding she was a flight risk.

Government attorneys confirmed the warrant is still active: “The government of El Salvador has expressed continued interest in the capture of Ms. Q., and will continue to work with ICE on the matter,” authorities said.

ACLU attorneys and child advocates say Ms. Q.’s son is suffering greatly without her. His potty training has regressed, he is exhibiting speech delays and doesn’t recognize his mother’s voice over the phone anymore, according to declarations filed on his behalf.

Mr. C. fled his homeland of Honduras and crossed illegally into the U.S. in April with his son, then 19 months old. He said he was escaping explicit death threats from gang members who had kidnapped and held him at gunpoint, as well as threats against his and his baby’s lives and threats from other gang members who had already killed several members of his extended family, according to court records.

He was separated from his son, D., after about three days in detention.

He thought he was going to be reunified with his son as part of Sabraw’s order and was moved from a Texas detention facility to one in New Jersey, close to where his son was being sheltered. But then he was told that there were questions about whether he was D.’s real father. After he presented documentation showing he was the legal father, authorities denied reunification due to his criminal domestic violence conviction.

Mr. C. had pleaded guilty in 2010 to an aggravated assault charge in Louisiana for swinging a machete at his wife while calling her names in front of her friends, according to court records. He was sentenced to 48 days in jail.

“His arrest report shows that he swung a machete at his wife — an act of violence that gives the government good reason to determine that he should not be placed in an open group setting with other parents and children,” the government argued in its motion.

He has a final order of removal but his claim of fear of persecution should he be returned to his homeland is being considered by an immigration judge. He is being held in an Orange County jail in ICE custody.

The finding goes against that of child advocates who have worked with his son.

“D.’s child advocate observed that prior to their separation, Mr. C. and his son were ‘very close,’ that the separation is ‘devastating’ to D., and that there is no indication that Mr. C. had abused or neglected his son,” the ACLU argued.

Gelernt responded to the ruling late Wednesday, saying, “Nothing in this decision prevents the government from choosing on its own to reunify these young children, and we will continue to explore ways to make that happen.”

kristina.davis@sduniontribune.com

Twitter: @kristinadavis

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