Judge sticking to firm deadline to return children taken from parents at border

SAN DIEGO — U.S. District Judge Dana Sabraw appeared conflicted in early May on whether to stop families from being separated at the border. He challenged the Trump administration to explain how families were getting a fair hearing guaranteed by the Constitution, but also expressed reluctance to get too deeply involved with immigration enforcement.

“There are so many (enforcement) decisions that have to be made, and each one is individual,” he said in his calm, almost monotone voice. “How can the court issue such a blanket, overarching order telling the attorney general, either release or detain (families) together?”

Sabraw showed how more than seven weeks later in a blistering opinion faulting the administration and its “zero tolerance” policy for a “crisis” of its own making. He went well beyond the American Civil Liberties Union’s initial request to halt family separation — which President Donald Trump effectively did on his own amid a backlash — by imposing a deadline of this Thursday to reunify more than 2,500 children with their families.

Unyielding insistence on meeting his deadline, displayed in a string of hearings he ordered for updates, has made the San Diego jurist a central figure in a drama that has captivated international audiences with emotional accounts of toddlers and teens being torn from their parents.

Circumstances changed dramatically after the ACLU sued the government in March on behalf of a Congolese woman and a Brazilian woman who were split from their children. Three days after the May hearing, U.S. Attorney General Jeff Sessions announced the zero tolerance policy on illegal entry was in full effect, leading to the separation of more than 2,300 children in five weeks.

Sabraw, writing in early June that the case could move forward, found the practice “arbitrarily tears at the sacred bond between parent and child.” It was “brutal, offensive, and fails to comport with traditional notions of fair play and decency.”

David Martin, professor emeritus at the University of Virginia School of Law, said, “It’s probably not the first judge who seemed more deferential and then got much more active when he or she thought the government was not being responsive or had taken a particularly objectionable stance. Childhood separation clearly had that kind of resonance.”

“The intrusion into the family is so severe, the judicial reaction has been just like much of the public’s reaction: ‘This is an extraordinary step, you shouldn’t have done it, you better fix it as quickly as possible,’” said Martin, a Homeland Security Department deputy general counsel under President Barack Obama.

Sabraw, 60, was born in San Rafael, near San Francisco, and raised in the Sacramento area. His father was stationed in Japan during the Korean War, where he met his mother.

The judge has said prejudice against Japanese growing up made their housing search difficult.

“In light of that experience, I was raised with a great awareness of prejudice,” he told the North County Times newspaper in 2003. “No doubt, there were times when I was growing up that I felt different, and hurtful things occurred because of my race.”

While studying at University of the Pacific’s McGeorge School of Law, he met his wife, Summer Stephan, who was elected San Diego County district attorney in June. He told the Federal Bar Association magazine in 2009 that his wife and three children, then teenagers, kept him “running from one activity to another, and grounded in all that is good and wonderful in life.”

Republican President George W. Bush appointed Sabraw to the federal bench in 2003 after eight years as a state judge. By virtue of serving in San Diego, his caseload is heavy with immigration and other border-related crimes.

In 2010, he oversaw a settlement with the U.S. Securities and Exchange Commission over allegations that San Diego officials misled investors about city pension liabilities. In 2014, he favored Apple Inc. in a closely watched patent infringement case against the tech behemoth. In 2016, he sided with the state of California in refusing to block a law requiring school vaccinations.

Robert Carreido, a criminal defense attorney who estimates having 20 to 30 cases before the judge, was a little surprised how hard Sabraw came down on separating families because he hews pretty closely to the government’s sentencing recommendations.

“He rarely will go above what we’ve negotiated (in plea agreements), but he doesn’t usually go much lower than what the government recommends,” Carreido said. “In my experience, I would consider him in the middle.”

Sabraw’s reputation for a calm, courteous demeanor and running an efficient calendar has been clear in his highest-profile case so far. He has kept hearings to about 90 minutes, telling attorneys he doesn’t want to get too “in the weeds” on logistics of reunifying families.

“My general view is if the court has to raise its voice, or threaten sanction, then we’ve lost control,” Sabraw told the Daily Journal, a Los Angeles legal publication, last year. “I never want to be in that position. Usually, almost always, court is almost like a place of worship.”

His patience wore thin one Friday afternoon when the government submitted a plan to reunite children 5 and older that excluded DNA testing and other measures. The government said “truncated” vetting was needed to meet Sabraw’s deadline, despite considerable risk to child safety.

The judge quickly summoned both sides to a conference call at 5:30 p.m. to say the plan misrepresented his instructions and was designed to pin blame on him if anything went wrong.

The government, which never showed serious consideration of an appeal, submitted a revised plan two days later that restored DNA testing if red flags arose. Jonathan White, a senior Health and Human Services Department official and the plan’s architect, authoritatively answered questions in court the next day, prompting the judge to tell him he had “every confidence that you are the right person to do this.”

The revised plan, he said, was a “great start to making a large number of reunifications happen very, very quickly.”