The practice of separating families has been part of the Trump administration's "zero-tolerance" immigration policy, which refers anyone detained at the border for prosecution, including those seeking asylum in the United States.
The reunited families will then be released and allowed to stay in the United States pending further immigration proceedings - the exact opposite of what President Donald Trump and Attorney General Jeff Sessions had hoped to accomplish when they launched the "zero tolerance" effort in May.
U.S. Judge Dana Sabraw in San Diego told government attorneys he was sticking with deadlines he set last month, when he ordered children under five to be reunited Tuesday and another 2,000 to be back with their parents by July 26.
Immigrant children around the US left shelters with their backpacks and a tender goodbye hug from staff members onTuesday as the Trump administration began reuniting dozens of youngsters with their parents under a court-ordered deadline.
The administration was ordered to share a list of the 102 children under age 5 with the ACLU by Saturday afternoon.
The Legal Aid Society in NY said it is representing at least two separated children under 5 years old that meet the judge's criteria for reunification on Tuesday. This "catch-and-release" policy is effectively mandated for illegal aliens arriving with children younger than five by Judge Sabraw's ruling, along with U.S. District Judge Dolly Gee's refusal Monday to modify 1997's Flores Settlement.
"It's extremely disappointing the government will not be in full compliance with the court order, but the judge has stepped in to manage this mess of the administration's making".
Health and Human Services Secretary Alex Azar told CNN's Wolf Blitzer on Tuesday that by the end of the day, he expects 38 children will have been reunited with their parents. Those "impediments" included deportation of a parent or "safety and suitability screenings" that were ongoing.
The reunions are expected to be carried out in secret or secure locations, with parents taken from the detention centers where they have been held and children brought from federal shelters or foster homes.
In the meantime, many of these children have had to face their immigration proceedings without their parents in court.
Gelernt, the ACLU lawyer, said in court that the government had taken "significant steps" to reunite families but should be moving more quickly.
Six of the 102 children are not eligible for reunification because they have a parent with a criminal history or were separated from someone who is not their parent. One child has still not had either of its parents identified.
"This is real progress and I'm optimistic that many of these families will be reunited tomorrow and we'll have a very clear understanding as to who has not been reunited, why not, and a time frame in place", he said.
Most of the parents will be released into the USA from immigration detention centers, and the children will be freed from government-contracted shelters. "They want to punish these families who are here and deter others from coming". The family reunification order doesn't guarantee it either.
Fabian attributed the holdup to difficulties tracking down some parents, and to necessary background checks on those whom they've found.
ACLU lawyers took issue with the remaining 16. She said the kids were blameless and such an arrangement was not in their best interest. "If those [parents] submitted birth certificates...[we] suggest those kids be released".
Several other children can't be reunited with their parents because the adults have serious criminal records, the government said.
However, so long as officials are able to complete those reunifications by that Friday, or can prove that they have made a "good faith" effort to do so, it's unlikely they will be held in contempt of court.
If the deadline is not reached, as it appears it will not, it is unclear what exactly would happen.