Law360 (June 26, 2020, 8:01 PM EDT) -- A California federal judge ordered U.S. Immigration and Customs Enforcement on Friday to release migrant children who have been detained longer than 20 days by July 17, following claims from advocates that the government is holding the children unnecessarily.
U.S. District Judge Dolly Gee, who is overseeing a long-running class action on behalf of migrant children in government custody, also ordered ICE to promptly implement better social distancing measures and mask-wearing procedures recommended by the Centers for Disease Control and Prevention to protect against the novel coronavirus.
At least 11 people held at a family detention center in Karnes County, Texas, and four employees at the Dilley, Texas, center have tested positive for COVID-19, according to court filings.
"The [family residential centers] are 'on fire' and there is no more time for half measures," Judge Gee wrote.
Children who have been held longer than 20 days may remain in government custody if there is no suitable sponsor, if the parents waive their release rights or if they failed to appear at a previous immigration court hearing, the order says.
The judge urged ICE to implement these measures "with all deliberate speed," rather than "hiding behind unevenly implemented written protocols, in order to comply with its obligation to provide safe and sanitary conditions for class members."
An ICE spokesperson said in a statement on Saturday that the agency is "currently reviewing" Judge Gee's order.
Wendy Young, president of Kids in Need of Defense, praised Judge Gee's order and urged ICE to comply with it by releasing parents from family detention as well.
"It's equally unacceptable to attempt to rip children from their families by offering parents the impossible choice of remaining in detention with their children or allowing the government to separate them from their child without assurance of reunification," she said in a statement.
Judge Gee's order comes after immigration advocacy groups ripped into ICE for providing a "cursory and vague" report on the conditions of migrant children in custody, saying the agency failed to justify the minors' continued detention during the coronavirus pandemic.
In an amicus brief filed Thursday, three immigration groups urged Judge Gee to enforce the Flores agreement, a 1997 settlement that established bedrock standards of care for detained migrant kids, and order ICE to speed up its efforts to release migrant children detained in Texas and Pennsylvania family detention centers.
The groups were spurred by a June 10 ICE report that they said was "internally inconsistent, factually inaccurate and incomplete in material ways," and revealed that ICE has strayed from a court order that it take "prompt and continuous efforts" to release migrant children from detention.
Judge Gee ruled in March that unjustified delays in releasing migrant children violated the terms of the Flores agreement, and she followed up that order in April, when she instructed ICE to take and document "prompt and continuous efforts" to free the minors.
But the report revealed that ICE reviewed the detainees in custody only twice since March. "Two custody (re)determinations, when class members at the three [centers] have been detained for upwards of 100 days, cannot be considered 'prompt and continuous,'" the organizations responded.
The report was further beset with inconsistencies, the organizations claimed. Shalyn Fluharty of Proyecto Dilley, one of the amici, told Law360 on Friday that across the report, ICE marked minors' time in government custody from different benchmarks and sometimes misrecorded the status of their immigration cases.
"Children should typically be released within 20 days — you can't assess that without knowing the status of the proceeding and how long that is taking," Fluharty said.
The groups further contended that the report was factually incorrect. ICE reported that families failed to hand over information on individuals able to receive the migrant children on parole. But the groups pointed out that they have repeatedly provided ICE with the names, phone numbers and addresses of individuals able to take care of migrant children.
"Sponsorship has never really been an issue, and the fact that sponsorship information was missing from the report was a very big mischaracterization," said Andrea Meza of RAICES, another one of the advocacy organizations.
In another error, ICE said that certain children were participating in separate federal litigation that they were not actually involved in, the groups said. The mistakes were costly, as the report showed that detainees pursuing litigation were refused parole, they said.
The report further obscured the danger the children faced due to the coronavirus pandemic, the advocates said. Though the number of detainees held at the detention centers has been reduced to allow for social distancing, the organizations pointed out that parts of the facilities are largely restricted to migrants. Additionally, efforts to provide migrants with masks don't account for young minors' inability to wear them without suffocating, the organizations said.
But for the advocacy groups, the report "critically" revealed that ICE had failed to give valid reasons to keep migrant children in detention. In some cases, ICE rejected a parole request because the applicant was appealing final removal orders; in others, because the migrants were involved in separate lawsuits.
The rejections referenced information that Judge Gee instructed ICE to ignore, and "ICE has released people in these exact same situations, even in the pandemic," Meza said.
In light of the errors and inconsistencies, Fluharty said that one thing was clear: "the government is not making and recording efforts to release children from custody."
The amici are represented by Gabriel S. Barenfeld and Gretchen M. Nelson of Nelson & Fraenkel LLP, Andrea Meza of RAICES, Shalyn Fluharty of Proyecto Dilley and Bridget Cambria of ALDEA — The People's Justice Center.
The Flores class is represented by Carlos Holguin and Peter A. Schey of the Center for Human Rights & Constitutional Law, Holly S. Cooper of the University of California, Davis School of Law, Bill Ong Hing of the University of San Francisco School of Law Immigration Clinic, Stephen Rosenbaum of La Raza Centro Legal Inc., Jennifer Kelleher Cloyd, Katherine H. Manning and Annette Kirkham of the Law Foundation of Silicon Valley and Bridget Cambria of ALDEA — The People's Justice Center.
The government is represented by Sarah B. Fabian of the U.S. Department of Justice's Civil Division.
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 Dorothy Atkins. Editing by Steven Edelstone.
Update: This story has been updated with additional information and comments about Judge Gee's order Friday.
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