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The fact that a kid has US citizenship does not mean that the the legal system of Honduras will refer to the US courts in any custody decision. So of the parents can not agree on what should happen with the child, the child will be deprived of the right of an US custody court deciding its fate. That would be irreparable harm -- unless Trump is willing to send SEAL team to repatriate the child.
Now, it could well be that the custody battle between father and mother is just a charade meant to delay the deportation of the mother. But presumably the Federal government can expedite that custody process. Unless the mother is due to have another baby (which Trump would prefer not to be a US citizen), I don't exactly see the urgency.
Also, no matter how you spin it, deporting two kids aged 2 and 11 along with their mother is terrible optics. The executive has some leeway in whom to deport, so Trump can not hide behind "just following the law" here. Presumably, Trump has already gotten rid of all the gang members, and the men with random tattoos and the people accused of a crime and "mothers of US citizens who went to their ICE check-ins" are the only ones left?
Please elaborate how you think the federal government can expedite state court judicial proceedings.
I have never seen this happen. I mean, I've only practiced law for 12 years so maybe I will see this in the future. But we live in a world of dual sovereignty, particularly with the courts.
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I think that this sort of irreparable harm is somewhat unavoidable in such circumstances. Janet Reno was willing to send tactical border patrol agents to return a toddler from extended family in the US to his father in Cuba -- there is an iconic photo of a federal agent pointing an MP-5 at a screaming toddler in his family's arms. Or that time the Carter administration allowed a Ukrainian teenager living in Chicago to claim asylum when his parents decided to move back to the Soviet Union. All of those cases are, in some ways "irreparable harm". But so is the reverse, and I'm not really sure how you'd consistently manage to avoid all such classes. I'm open to suggestions.
Both international and US law say that children subject to active custody disputes should not be removed from the jurisdiction of the child's habitual residence without the permission of the (family) court having jurisdiction, and should be returned quickly if they are removed - the big difference with the Eilan Gonzales case is that Eilan was habitually resident in Cuba (so the claim to keep him in the US was on best interest grounds) whereas the child here is habitually resident in the US (and the reason for removing them is to conveniently deport the mother). It isn't obvious how this interacts with immigration law if the child is an illegal immigrant (although I suspect an English or American domestic court would rule, contra the international law textbooks, that a child could not be habitually resident in a country where their presence was illegal), but this is a case where the child is a citizen.
Even if you disagree with the policy, the amount of process that is due before deporting a US citizen child with relatives in the US who claim to be able and willing to care for them is greater than zero. Based on both the press coverage and the general direction of Trump administration immigration process, it looks like ICE made no attempt to understand the family law position before deporting the mother and child - it looks like they went further and deliberately frustrated the parents' attempt to do so in order to get mum out of the country before a court could intervene.
Agreed that the most likely fact pattern is that the whole family (except for the US-born kid) including Dad were in the country with permission under one of the various Biden-era programmes, and can be legally deported now that Trump has revoked that permission.
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Presumably, to stay in the US as a minor, you require both (1) being allowed to stay in the US by the US gov (e.g. having asylum, citizenship or being tolerated) and (2) your legal custodian living in the US. In both of these cases, the subject of the custody battle was not a US citizen, so the federal administration had a lot more discretion. WP is not clear on how the custodial case for Walter Polovchak turned out and how federal courts became involved. The general vibe I get from both of these cases was that there was a lot more judicial oversight than in the present case.
Irreparable harm is unavoidable in custodial battles, sure, but I would argue that the proper place to decide how to minimize that harm is family court (which is supposed to take the child's best interests into account), not the whim of some ICE bigwig who is likely happy to fill another seat in the plane, citizen or not.
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Not only that, the practice of sending people away at the ICE checkin, as opposed to using that visit in to serve them with notice of termination of status so that they can get their shit and depart in an orderly fashion creates the an awful selection effect.
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