By Bianca Bruno

SAN DIEGO – A federal judge Tuesday questioned what harm the government would face if it had to implement a pending settlement agreement to grant asylum interviews to families separated at the U.S.-Mexico border under the since-abandoned zero-tolerance immigration policy.

U.S. District Judge Dana Sabraw heard from attorneys for the families and government concerning a new schism in the ongoing litigation – consolidated in the Southern District of California – over the separation of more than 2,600 mostly Central American families at the U.S.-Mexico border.

Last week, attorneys representing the families filed an emergency motion to implement the settlement agreement the parties reached last month. Although Sabraw granted preliminary approval to the agreement, a final approval hearing is not scheduled until Nov. 15.

The families’ attorneys say they entered into the settlement based on the government’s representation it would begin to conduct asylum interviews for families who wanted to remain detained while pursuing legal means to remain in the U.S. rather than be deported.

But the government hasn’t begun to process their applications, and at least 40 families have opted for deportation “because they simply could not wait in detention for any longer,” according to their attorneys.

On Tuesday, Sabraw asked Justice Department attorney Scott Stewart how the government would be harmed if it started conducting asylum proceedings pending final approval of the settlement agreement next month.

“The settlement in this case is well-postured for approval,” Sabraw said. “What would the prejudice be to the government in at least starting some of these orientations and hearings? Wouldn’t it just be a loss of government resources? I’m not understanding what the prejudice would be.”

Stewart recognized that “it is a very costly, burdensome thing for the government to hold people in detention” but said “finality of the class resolution are key pieces for the government” and that it “[has] a problem” implementing the asylum agreement under an emergency briefing schedule.

“The government needs to be careful,” Stewart said, noting one objection to the settlement has already been filed with another possible objection coming from a small group of people wanting to be included in it.

Class attorney Justin Bernick of Hogan Lovells in Washington, D.C. told Sabraw via teleconference they “heavily relied” on the government’s representation it would “get moving” on implementing the asylum process when the agreement was negotiated.

Bernick said 60 people have signed the settlement waiver holding them in detention pending the processing of their asylum claims. He said his clients believed they would start the asylum process within days of signing the form.

“This is not going to open Pandora’s box. We are bound by this agreement,” Bernick said. He pointed out the families are “entitled to these interviews anyway by statute” and said moving forward with the asylum interviews “could help conserve government resources.”

But Stewart contended that “ordering the government to immediately implement the agreement in the absence of final approval represents a significant legal risk.”

Still, Stewart said the government is willing to move forward in implementing the settlement agreement “as appropriate.” When Sabraw asked if the 60 people could move forward on their asylum claims, Stewart said they “likely could.”

Bernick retorted that the class relied on the “same language Stewart used on how to move forward” during the settlement negotiations “but that has not materialized.”

Sabraw indicated he will issue a “short and to-the-point” order on the emergency motion soon. He scheduled the next status conference for Nov. 9, expressing hope that a “final accounting” of reunified families will bring the case to a close “during this time frame.”