The judge in that case has ordered that children under age 5 be reunited with their parents by Tuesday, and that all minors separated from their parents be reunited by July 26. The government admitted today in court that "they can not locate the parents of 38 migrant children under the age of 5".
The government, in its filing overnight, said the process could further be delayed by steps that were required before parents could be reconnected with their children.
A parallel lawsuit, brought last month by the Democratic attorneys general of 17 states and the District of Columbia, also seeks the rapid reunification of separated families. Sabraw also ordered the government to produce a list of children under five who may still be separated from their parents by Saturday.
In his written opinion, the judge criticized the government, saying, "The facts set forth before the court portray reactive governance - responses to address a chaotic circumstance of the government's own making".
"HHS anticipates, however, in some instances it will not be able to complete the additional processes within the timelines the court prescribed, particularly with regard to class members who are already not in government custody", they wrote.
For @SecAzar to blithely say HHS has "under 3,000" children in custody (a round number larger than the originally cited 2,047) is a shocking indication of this administration's depraved indifference. CNN first reported that the administration was conducting DNA tests on families in custody, which raised concerns among advocates and lawyers working with migrant families who have been separated.
Sabraw's ruling also applies to families separated before the administration's "zero tolerance" policy was implemented in May. He said repeatedly officials know where all the migrant children are located and noted HHS personal have reviewed the case files of all the minors in its care.
If and when children are released to adults who are now in the custody of the Department of Homeland Security, it is not yet clear what will happen to them.
The government's request, hours before a scheduled hearing on the issue Friday, marks an abrupt departure from comments made earlier Thursday from President Trump's secretary for Health and Human Services Secretary Alex Azar, whose agency cares for the children in shelters. "We have not sent children into ICE custody yet, pursuant to the court's order, but we will do so as we approach the court's deadline".
"The safety and security is paramount and that it is not uncommon for children to be trafficked or smuggled by those claiming to be parents". But administration officials who spoke on the condition of anonymity portrayed the operation as a bureaucratic nightmare involving different computer systems, databases and filing systems, and staffs that have been at odds with one another about how to proceed and what information to share with the public.
"It's deplorable they are using the guise of reuniting children to collect even more sensitive data about very young children", said Jennifer Falcon of RAICES, a Texas-based rights group representing migrant families.
In light of reports that records about children and parents' whereabouts have been destroyed, Citizens for Ethics and Responsibility in Washington (CREW) demanded Friday that HHS and DHS be subject to an investigation for potential violation of the Federal Records Act (FRA).