By Alyssa Aquino

Law360 (August 24, 2020, 10:29 PM EDT) -- U.S. Immigration and Customs Enforcement told a California federal judge that it's made efforts to comply with orders to release migrant children from immigration detention, but that it won't move forward with one that would separate detained families.

The agency on Friday urged U.S. District Judge Dolly Gee against forcing it to comply with a June order requiring it to free migrant children from family detention centers struggling to contain the coronavirus, arguing that moving forward with the release would require the agency to split apart detained parents from their children.

"ICE evaluates all families for release together in the first instance, but in situations where ICE determines that release of the parent is not appropriate, continued custody of children with their parents is appropriate and consistent with the [Flores] agreement," ICE argued, referencing the government settlement establishing bedrock standards of care for minors in federal custody.

In June, Judge Gee ordered ICE to comply with the Flores agreement and immediately release children from the nation's family detention centers. ICE could release detained parents alongside their children or place the minors with a vetted sponsor or relative; alternatively, a parent may waive their child's release rights, according to the order.

ICE, the children's counsel and the third-party attorneys for the detained parents have contested how that order will be carried out, but progress stalled indefinitely when the agency withdrew from negotiations over the protocol for locating appropriate sponsors, as well as the protocol to notify parents of their children's rights.

A week ago, the children's attorneys pressed Judge Gee to enforce the order, arguing that ICE's failure to vet potential sponsors and its refusal to advise parents about their children's rights — which is required for ICE to obtain a release waiver — "amounts to a no-release policy."

But ICE said it objected to the creation of any protocol that would potentially separate a parent from their child, noting that the Flores settlement's "first goal" was to keep families intact.

The agency further swatted away arguments that its refusal to draw up a release and waiver protocol were in violation of the Flores settlement's notice provisions. Though the agreement requires the government to inform detained children of their rights, that mandate doesn't cover the detained parents, ICE said.

Peter Schey, counsel for the children, called ICE's position "cynical and dishonest" in a Monday statement.

"It is the Trump administration that has forcibly separated children from their parents," he said. "All we are asking the court to do is to order the government to fully and fairly advise detained parents about their children's rights, and to have procedures in place to release children if a parent believes release is in the best interest of their child."

Representatives for ICE didn't immediately respond to requests for comment on Monday.

In an Aug. 7 hearing, Judge Gee reproached ICE over "squandering" the time she gave to meet the release order.

The government's legal team drew a sharp rebuke when an attorney explained that the government wouldn't agree to protocols that would allow for family separation.

"That position is disingenuous," Judge Gee responded. "The government has chosen, for whatever reason it has, to implement a policy that has given rise to give parents that option."

The children are represented by Peter A. Schey and Carlos Holguin of the Center for Human Rights & Constitutional Law.

The government is represented by Sarah B. Fabian and Nicole N. Murley of the U.S. Department of Justice's Office of Immigration Litigation.

The case is Flores et al v. Barr et al, case number 2:85-cv-04544, in the U.S. District Court for the Central District of California.

--Additional reporting by Lauren Berg. Editing by Steven Edelstone.

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