A federal judge on Monday ordered the US government to temporarily pause deportations of reunited families to allow attorneys time to debate whether he should more permanently extend that order.
San Diego-based US District Court Judge Dana Sabraw addressed the issue at the top of a status hearing in a continuing family separations case filed by the American Civil Liberties Union.
Sabraw ordered the pause to allow for a full written argument on the ACLU's request to pause deportations of parents for a week after reunification.
In the meantime, the government also confirmed for the first time how many parents and children in government custody have been matched up, at least preliminarily.
According to the numbers, the parents of 71 children separated from their families at the border have yet to be identified and located.
There were 2,551 total children aged between 5 and 17 separated from their parents at the border, according to the government. There are hundreds of children whose parents have yet to be accounted for, aside from the 71 whose parents have not yet been identified.
There are 1,609 parents of those children still in detention with Immigration and Customs Enforcement, Assistance Secretary for Preparedness and Response at HHS Commander Jonathan White testified.
That means that potentially hundreds of parents have either been deported or released already, or that they could be in federal or state criminal custody.
The government is expected to provide information about those categories of parents later this week.
Reunifications for children aged 5 and older has already begun, White confirmed.
Of the 1,609, HHS has already signed off on 1,317 that raise no red flags for safety or parental relationship. ICE also has to sign off: ICE has cleared 918 of those, and have found 51 are not cleared. Another 348 are pending clearance, White added.
The ACLU argued that the week would be necessary for parents to have time to fully consider the decision whether to have their children deported along with them.
The ACLU's filing was made earlier Monday morning, and Sabraw gave the Department of Justice a week to respond.
But in the meantime, he ordered a "stay" of deportations until that issue can be litigated.
Lawyers for the ACLU said their motion was due to "the persistent and increasing rumors -- which Defendants have refused to deny -- that mass deportations may be carried out imminently and immediately upon reunification." They argue this issue is "directly related to effectuating the Court's ruling that parents make an informed, non-coerced decision if they are going to leave their children behind."
"A one-week stay is a reasonable and appropriate remedy to ensure that the unimaginable trauma these families have suffered does not turn even worse because parents made an uninformed decision about the fate of their child," the ACLU's lawyers added.
In court, the government raised the possibility that his earlier order to pause deportations of reunified families for at least a week to allow for further arguments could cause problems. DOJ attorney Sarah Fabian said she would have to confer with officials, but noted space to house the families cleared for deportation once they're reunified could be a problem.
Sabraw said that simply could not be the case.
"The reunifications should continue in accordance with Commander White's plan and the idea that it would slow down or stop for other logistical reason due to a stay of trying to deport families immediately upon reunification, that's not an option," Sabraw said. "That just shouldn't be happening. There's no reason that I can think of where that can result in unhinging the reunifications underway. ... If space is an issue, the government will have to make space."