At the hearing in San Diego, Judge Dana Sabraw gave the authorities extra time to determine which children will be back with their parents, as government lawyer Sarah Fabian said 54 of the youngsters could be reunited by the Tuesday deadline, the USA media reports said.
In court filings, the ACLU has said the government is asking for needless provisions for reuniting families that would not happen if the families had not been separated in the first place. Some families are only partially reunified; a child may be returned to his mother, for instance, while his father remains in detention.
Sabraw, an appointee of Republican President George W Bush, said on Monday (Tuesday NZT) that he was "very encouraged" by the efforts to reunite families by his deadline, calling it "real progress". Federal agencies have until July 26 to return children 5 and older who are among the "under 3,000" taken from their parents. This plan bypasses the lengthy "sponsor" process that is required to release an unaccompanied immigrant child from Health and Human Services custody.
"Let me be clear: HHS could have transferred every child out of our care to a parent who is now in DHS custody today if we did not take into account child safety or whether the adult is actually the parent", HHS Chief of Staff Chris Meekins, told reporters.
More than 2,300 children were separated from their parents after U.S. President Donald Trump's administration began a "zero tolerance" policy in early May, seeking to prosecute all adults who crossed the border illegally.
Some families will miss the deadline. Others are still going through the backgrounding process to ensure they are the children's parents and fit to take custody of them.
The American Civil Liberties Union, which is representing the parents in a class-action lawsuit, said US officials "have not even tried" to return 12 children to parents who were deported, and said officials should have more quickly found eight parents who have been released in the United States. And for several weeks, administration officials have been under a court-ordered deadline: Reunite those young children with their parents, and do it quickly. They said an additional 17 could also join their parents if DNA results arrived and a criminal background check on a parent was completed by day's end.
American Civil Liberties Union attorney Lee Gelernt, whose organization filed the lawsuit that forced the administration's hand, said he was "both thrilled and disappointed" with the government's work on the deadline.
"Nobody likes to be held in contempt of court", said Stephen Yale-Loehr, who teaches immigration and asylum law at Cornell University. Eight other purported parents will not be "reunited" with children due to failed criminal background checks that turned up serious convictions or child abuse.
He similarly said the government should limit its use of DNA tests to reunite parents and children, following the ACLU's argument that the government was using the tests to delay family reunifications.
Federal judge Dana Sabraw-who issued the ruling that set the Tuesday deadline-asked the ACLU to "submit a proposal for possible punishment" against the Trump administration for failing to meet the target date.
"Let me be clear: HHS could have transferred every child out of our care to a parent who is now in DHS custody today if we did not take into account child safety or whether the adult is actually the parent", Chris Meekins of Health and Human Services Department said in the call.
The Department of Justice asked Gee to alter a 1997 settlement, which provides the framework for how to handle detained immigrant children, so it could detain families together for longer periods.
Former officials in the HHS Office of Refugee Resettlement say its system is accustomed to serving teenagers who arrive in the US alone, often knowing the name of a relative who could potentially sponsor them.