//  5/25/18  //  Quick Reactions

Yesterday, news broke that the Department of Health and Human Services “lost track of nearly 1500 migrant children.” Yes, that’s right—a federal agency lost children over whom it had assumed custody. The agency apparently lost track of the children it had placed with sponsors.

That news relates to about a million other things the Trump administration has done with respect to immigration. There is the recent kerfuffle over the President’s slippage in describing some undocumented immigrants as “animals”; the administration’s insistence on doubling down to describe some gang members as “violent animals”; the administration’s insistence on separating children from their families at the border and placing them into “foster care or whatever” with no apparent plans for them to be reunited; the administration’s deporting persons who have longstanding ties to the community and family in the United States and who pose no threat to security; the administration’s apparent plan to house undocumented minors apprehended at the border on military bases; and so on. (And that list doesn’t include the ACLU’s recent report on how undocumented minors are allegedly treated while in ICE custody, or the fact that the President, at a staff meeting, apparently:

read aloud a few made-up Hispanic names and described potential crimes they could have committed, such as rape or murder. Then, he said, the crowds would roar when the criminals were thrown out of the country — as they did when he highlighted crimes by illegal immigrants at his rallies, according to a person present for the exchange and another briefed on it later. [Stephen] Miller and [Jared] Kushner laughed.

But I digress; the story that DHHS *lost* over a thousand children (and likely many more, given that the 1000-number was generated from a follow up on approximately 7000 cases, out of 40000+ total) is appalling and grotesque on its own. It also casts a new and troubling light on a case that I’ve written about some before—Azar v. Garza, which concerns the Trump administration’s (and DHHS’s in particular) authority over undocumented minors. Recall that in Garza, undocumented minors sought to obtain the abortions they were entitled to under state law (because they had obtained the requisite judicial bypasses, and required counseling, among other things). But DHHS (and the Office of Refugee Resettlement in particular, which is headed by Scott Lloyd) would not allow shelters to release the young women so that they could obtain abortions.

The administration’s exact position in Garza has never been quite clear. At various points, it has argued (despite disclaiming the position in court) that it has the authority to determine, on its own, whether an abortion is in the minor’s best interests. At other points, it has argued that forcibly holding the young women does not constitute an undue burden because the women can always leave the country (for countries where abortion is not legal). Other times, it has argued that it would not refuse permission to obtain an abortion from a rape victim (but then attempted to do so).

The administration has also argued that it is not attempting to *prevent* the young women from having abortions. It is merely *finding the young women* sponsors—that is, DHHS does not want the young women to have an abortion while they are in the custody of private shelters that contract with DHHS; DHHS wants the young women, if they are to have abortions, to have them while in the custody of sponsors. The news that the Trump administration lost undocumented children after placing them in the custody of sponsors is a troubling fact in light of the administration’s insistence on placing minors into the custody of sponsors before allowing the minors to obtain abortions.

DHHS’s justification for wanting to place the young women in the custody of sponsors before allowing them to have abortions has been one of two things—first the specious claim that it wants to avoid “facilitating” an abortion (a claim that is belied by the fact that other federal agencies release women in their custody so the women can have abortions, as well as the fact that finding a sponsor should require at least as much effort as releasing a young woman into the custody of her court-appointed guardian for to obtain an abortion). Second is the equally specious claim that releasing the young women into the custody of their sponsors puts the women in “better places” to obtain the abortions.

Put aside for the moment the lack of *any* evidence the government offered for the proposition that being in the custody of a private sponsor would put young women in a “better place” than the women would be if they obtained their desired abortions *earlier* while in the formal custody of private shelters that contract with DHHS. Instead consider the fact that DHHS apparently places minors into the custody of persons who then go missing, “raising concerns the[] [minors] could end up in the hands of human traffickers or be used as laborers by people posing as relatives.” If DHHS isn't even bothering to conduct background checks on some sponsors, and is *losing* children when it releases them to sponsors, then why should anyone believe HHS actually cares about finding these children sponsors and putting them in better places?

The apparent reality of DHHS’s sponsor process is not one that reliably puts minor children in “better places.” It does not even reliably guarantee the basic safety of minor children. It is another example of how the administration is treating *children* as something less than human. And that inhumanity is now on all of our consciences.

@LeahLitman


Versus Trump Live: Fairweather Federalism?

6/14/18  //  Commentary

On this week's special live episode of Versus Trump, Easha, Charlie, and Jason share the stage at the ACS National Convention in Washington, DC with Maryland Attorney General Brian Frosh and Stanford Law's Pamela Karlan. They discussed several important cases brought by states against the Trump Administration as well as the broader federalism issues presented by Democratic Attorneys General being involved in so many lawsuits against the federal government. Listen now!

Forced Separation Of Families & Forced To-Term Pregnancies

6/7/18  //  Commentary

The administration’s policy of forcibly separating children from their parents highlights some of the shortcomings with the legal justifications for the administration’s position in Azar v. Garza, the case in which the administration is refusing to allow undocumented women in its custody to obtain abortions.

Leah Litman

U.C. Irvine School of Law

Immigration Sins Of The Past & The Forced Separation Of Families

6/4/18  //  Commentary

The Trump administration's apparent policy of separating children from their parents when families cross the border together highlight some of the abuses and excesses of our immigration system.

Leah Litman

U.C. Irvine School of Law