Nonprofits Pushing For Family Release Can't Join Flores Case

By Suzanne Monyak | July 30, 2020, 4:54 PM EDT

A California federal judge on Wednesday thwarted nonprofits' attempt to join a long-running class action defending the rights of detained migrant children, finding that the children's current attorney has offered "more than adequate representation" despite the nonprofits' claims.

U.S. District Judge Dolly Gee said the nonprofit attorneys' criticisms of lead counsel Peter Schey regarding his support for giving detained parents a choice to separate from their children or waive their kids' rights to release "boil down to a disagreement on litigation strategy."

"Given the history of this litigation and the remarkable results of class counsel's advocacy from the inception of this action 35 years ago through the onset of the pandemic, the court finds that class counsel have provided more than adequate representation," Judge Gee wrote.

She added that she "sees no reason" to allow the nonprofit attorneys to join the case, known as Flores, to advocate for parents to be released with their children, noting that the Ninth Circuit already held that a 1997 settlement agreement, which established standards of care for detained children in the case, does not extend to their adult relatives.

However, Judge Gee said that the nonprofit attorneys, who directly represent detained children with legal services organizations Aldea - The People's Justice Center and the Refugee and Immigrant Center for Education and Legal Services, or RAICES, may continue to file friend-of-the-court briefs advocating for children and join meet-and-confers with the parties.

The attorneys have "unparalleled insight into the daily realities and needs" of migrants in family detention facilities that will be "invaluable" to the court moving forward," she said.

The judge's decision comes less than two weeks after attorneys for the detained children made public an internal dispute about how best to advocate for the kids' interests when asking the court for permission to intervene in the case.

In their July 20 motion, the attorneys had argued that the children's rights are "not adequately represented" under the counsel of Schey, co-founder of the Center for Human Rights and Constitutional Law, whom they accused of supporting a "coercive family separation process."

They said that Schey has supported presenting families with what advocates call a "binary choice": waive your child's right to be released to keep the family together in detention during a pandemic, or allow your child to be released to a relative or sponsor and break up the family.

"It is unclear why class counsel is advocating for consent to separate the plaintiffs-intervenors from their accompanying parents or a waiver of their rights under the agreement that would inevitably lead to indefinite detention in unsafe, unsanitary, and unlicensed conditions during a pandemic as the sole alternative," the nonprofit lawyers wrote.

The federal government had opposed their request, calling it a "late-stage maneuver in order to delay, or perhaps even to halt" negotiations with class counsel regarding the children's release.

Schey said in a statement Thursday that neither he nor his co-attorneys "have ever advocated for or endorsed in any way the forced separation of children from their parents."

"We have successfully fought against forced separation of families for over 20 years," he said. "While a parent's decision to have their child released from detention is a difficult one, we have always believed it's a decision that solely rests in the hands of parents who are in the best position to decide what's in their child's best interest."

He added that he will continue to seek the nonprofit lawyers' "valuable input and insight" throughout the litigation. 

U.S. Immigration and Customs Enforcement, which runs the nation's three family detention centers, has now blown past a July 27 court-ordered deadline to release all minors from the detention centers, after Judge Gee found that the facilities, which have seen an uptick in COVID-19 cases, were "on fire."

But ICE has so far refused to release the children's parents with them, and a D.C. federal judge overseeing a separate challenge to family detention declined to order ICE to do so. Without protocols in place to inform families of their options, Judge Gee said that her order was "unenforceable by its own terms."

Attorneys at a D.C. court hearing earlier Wednesday in the family detention case said that to their knowledge, ICE had yet to release any children under Judge Gee's order. The parties in the Flores case are due to provide a status update on their progress in preparing those protocols by Aug. 5.

The nonprofit attorneys and a U.S. Department of Justice spokesperson didn't respond to requests for comment Thursday.

The proposed intervenors are represented by Michael J. Stortz and Brett M. Manisco of Akin Gump Strauss Hauer & Feld LLP, Manoj Govindaiah of Refugee and Immigrant Center for Education and Legal Services and Bridget Cambria of Aldea - The People's Justice Center.

The class of detained children is represented by Peter Schey of the Center for Human Rights and Constitutional Law.

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

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

--Editing by Bruce Goldman.

Update: This story has been updated with a comment from lead counsel Peter Schey.

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