Trump Admin Opposes Ongoing Mental Care for Reunited Migrant Families – Courthouse News Service


A mother migrating from Honduras holds her 1-year-old child as surrendering to U.S. Border Patrol agents after illegally crossing the border Monday, June 25, 2018, near McAllen, Texas. (AP Photo/David J. Phillip)

LOS
ANGELES (CN) – A Justice Department attorney said Monday that the government
has no constitutional duty to provide mental health treatment to migrant families
who were separated under President Donald Trump’s now-abandoned zero tolerance
immigration policy but who were later released.

After
former Attorney General Jeff Sessions announced the policy in May 2018, nearly
3,000 children were separated from their parents while crossing the border in
the first month alone, including more than 100 younger than four and some as
young as 18 months.

Three
mothers who were separated from their children under the policy but later
released from Department of Homeland Security custody said in their July 2018
class action lawsuit they should be entitled to ongoing mental health care
after suffering enormous emotional trauma from the separation.

The
plaintiffs in the Ms. JP v. Sessions
matter, who claim their Fifth Amendment rights to due process and equal
protection were violated, seek treatment in line with standards for care under
the Flores settlement.

In
court papers seeking class certification, plaintiffs have asked that mental
health screenings be provided to all parents who have or will have children in
DHS custody.

But DOJ attorney Michael Heyse, appearing in court telephonically on Monday, said the government opposes class certification since it isn’t clear whether all class members will require ongoing mental care after the initial screening.

“Class
relief must apply to all members. It can’t be piecemeal,” Heyse said, adding
that plaintiffs can’t be adequate class representatives since they’ve been
released and reunited with their families.

Heyse
said the plaintiffs’ request for extended, ongoing mental care is a “remarkable
shift” from the Wakefield standard, a policy that requires federal detention
centers to provide immediate care, such as drug prescriptions, to individuals
released from custody.

Further,
the government is only obligated to provide constitutionally adequate mental
care for plaintiffs, “not the best and most expensive care,” Heyse said, adding
that the government never neglected to provide a screening when one was
requested.

Daniel Craig of Sidley Austin, an attorney for the plaintiffs, said health experts have submitted in court briefs that the impact of emotional trauma can often prevent individuals from knowing they’re traumatized or in need of care.

“How
can they self identify to [Immigration and Customs Enforcement] as needing
mental care when they can’t self diagnose?” asked Craig, adding that screenings
should be been done while migrants are still in detention.

Craig
said the Wakefield standard applies only to formerly detained individuals who
can seek treatment on their own.

“The
government knew it would inflict trauma by launching this policy,” Craig said.
“It would be inequitable to allow the government to escape its obligations.”

U.S
District Judge John Kronstadt, who did not indicate how we would rule on the
respective motions, asked Craig if any prospective order would also extend
treatment to the children of detained migrant parents.

“Yes,
the trauma extends to them as well,” Craig said, adding that the government
should pay for care up until the point when families can seek care on their
own.

Heyse
asked Kronstadt to toss the entire suit since the plaintiffs’ claims are
similar to those in the settled Ms. L v
U.S. Immigration and Customs Enforcement
case in San Diego.

U.S.
District Judge Dana Sabraw approved a settlement in November 2018 that allows
families separated at the U.S.-Mexico border to redo their asylum interviews.

But
Kronstadt held that it is common for cases with overlapping claims to proceed.

“My
tentative view is that claims can be inherently transitory,” Kronstadt said.

Due
to the ongoing federal government shutdown, Heyse said he could not provide an updated
figure of the number of parents with children in DHS custody who are still
detained.

Kronstadt
closed the hearing by urging both parties to engage in settlement discussions.



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