Recent court orders requiring the government to release migrant children from detention — but not their parents — could usher in another family separation crisis and pave the way for prolonged detention of families.
A California federal judge
overseeing a long-running class action on behalf of detained migrant children had ordered U.S. Immigration and Customs Enforcement
in June to release the children at the agency's family detention centers "with all deliberate speed," decrying the residential centers, which have seen an uptick in confirmed cases of COVID-19, as "on fire."
But any hopes that ICE would be forced to release the youngsters' parents with them were dashed Wednesday when a D.C. federal judge refused to issue a blanket order
freeing families as a unit, forcing parents to request their release individually.
With the cases proceeding on separate tracks, the children could be released ahead of their parents, forcing parents to choose between releasing their children to a sponsor or relative and keeping their children in a detention center at the height of the coronavirus pandemic.
"ICE has the discretion to release the families together," said Krish O'Mara Vignarajah, president and CEO of the Lutheran Immigration and Refugee Service. "By choosing not to do so in the middle of a pandemic, it is actively choosing cruelty."
"Unless the families are released together, we are looking at family separation by another name," she added.
U.S. District Judge James E. Boasberg of the District of Columbia shied away from blanket release of families in his Wednesday decision, saying that ICE's efforts to stem an outbreak of COVID-19 in the nation's three family detention centers "seem to have yielded a moderate, though undeniably fragile, success."
His order paved the way for families to be presented with what critics have called a "binary choice": separate the family to release the child, or waive the child's right to freedom to keep the family together.
This model has divided even the attorneys
representing the class of detained children in the California case, known as Flores, which established bedrock standards of care for migrant youngsters in government custody, including a 20-day limit on detention for children, in a 1997 settlement agreement.
Lead counsel for the class, Peter Schey, has pushed for parents to be given the choice, pointing the finger at the Trump administration's federal immigration policies that limited asylum eligibility, not the binary choice model, for keeping these families in detention in the first place.
In an email to Law360 on Tuesday, he said parents "have the right to be informed about their options."
His support for the model prompted a group of nonprofit attorneys who directly represent detained children to ask to intervene in the case on July 20, claiming that the children's interests are "not adequately represented" under Schey's counsel. Several members of the legal team have also withdrawn from the case over the past few days.
Critics say the binary choice model isn't much of a choice at all.
Shalyn Fluharty, director of Proyecto Dilley, who represents families detained at the South Texas Family Residential Center in Dilley, Texas, said parents cannot voluntarily make that choice while detained in a facility that is experiencing a COVID-19 outbreak.
"Our parents, if presented with a choice, would be presented with a choice that is so coercive based on the circumstances at this time that it could never be voluntary and it could never be knowledgeable," she said.
Many compare the prospect of more separations to the family separation crisis of 2018
, when thousands of children were separated from their parents at the border as part of then-U.S. Attorney General Jeff Sessions' zero-tolerance policy on unauthorized border crossings.
The Trump administration was ordered to end the practice
in June 2018 and reunify separated children with their families. A federal judge later told the administration to pay for mental health care
for parents whose children were taken from them to address the psychological trauma it caused.
Attorneys who represent detained migrant families stress that parents and children will undergo similar trauma if forced to separate now, even if the parents technically consent to it.
Kathryn Shepherd, national advocacy counsel at the American Immigration Council
, recalled interviewing parents in Texas after they had been separated from their children under the prior policy, and how they feared they would never see their children again.
If anything, the types of separations spurred by a binary choice could carry far-worse ramifications than the 2018 ones did, Shepherd said, warning that it could set a "dangerous precedent for all the future families that come through the family residential centers."
"I think it's a different, though equally insidious, form of family separation that we saw in 2018," she said.
Fluharty worried that the model could also open a door for indefinite detention of children on a massive scale. If parents decline to be separated from their children, they waive their children's right to be released under the Flores agreement.
According to Fluharty, there are 66 families being held at the Dilley family detention center, including 92 children, and the average length of a family's detention at the facility is 244 days.
One 3-year-old child has been held there for 343 days, Fluharty said.
With the 20-day limit scrapped, ICE would have no motivation to release families at all, even if they clear their initial asylum screenings, known as the credible fear test, Fluharty said.
"Family separation as an image is something that people see and understand and spurs outrage. And that's one reality that I think we could see on a massive scale," she said.
But the prospect of prolonged family detention if parents waive their children's Flores rights raises an "invisible but equally harmful" result, she said, noting that immigration court proceedings can last months if not years.
"These are kids literally growing up in jail, spending more time in jail than they've spent on the earth," she said.
Instead, many advocates have pushed the government to use alternatives to detention, such as community-based case management programs and required check-ins to ensure that asylum-seekers show up to their court dates.
An ICE spokesperson didn't respond to a request for comment on how the agency plans to comply with the recent court orders.
The government's attorneys said in court filings
that ICE opposes binary choice, but claimed the California federal court order to release the children has forced the agency's hand.
The separations could be imminent. U.S. District Judge Dolly Gee, who is overseeing the California case, has given the government a July 27 deadline
to release all children who have been held at the detention center longer than 20 days. ICE had asked for an extension, but Judge Gee denied that request on Saturday, saying that if none of the requirements for children to be released has been met by that deadline, including protocols to inform parents of their rights, her June order is "unenforceable by its own terms."
She also urged attorneys "to pause, take stock, and stop disseminating the fiction that families will be separated" as a result of her order, saying that no parents will be separated from children without their consent.
The threat of separation isn't all they face. Many detained asylum-seekers are also facing deportation orders after failing to clear their initial fear screenings, including those who were found ineligible for asylum under a recently invalidated
policy that stripped eligibility from migrants who passed through another country en route to the U.S.-Mexico border.
In the meantime, the Trump administration is pushing to change regulations to allow children to be detained
with their parents for the duration of their immigration court proceedings. Judge Gee struck down the regulation, finding it conflicted with the terms of the Flores settlement agreement, but the government appealed to the Ninth Circuit, which is poised to rule
With the Trump administration's preference for family detention in mind, Amy Maldonado, an attorney for the migrant families in the D.C. court case, predicted that ICE would flout Judge Gee's order and continue to hold the children in detention past the judge's deadline. The publicity raised by images of more family separations may also be seen as politically unpopular during an election year, she said.
She said she hoped that ICE would use its discretion to release the parents with their children, which she said would be the "most efficient and easiest way available to them."
"We don't think the government should get a minute longer to keep these families and these children in detention," she said.
Other immigrant advocates were not optimistic that ICE would do so. But while it may be a tougher legal battle, some attorneys said that a future attempt at separations, even with the parents' technical consent, could meet the same fate in court as the administration's 2018 policy.
Requiring parents to sign consent forms to separate from their children shortly after crossing the border, and before they can speak with an attorney, could raise due process claims, Fluharty of Proyecto Dilley said. She also pointed to a legal provision of the federal immigration statute that requires ICE to consider simultaneously releasing a detained child with a parent "on a discretionary case-by-case basis."
"In our experience, ICE has not done this," Fluharty said.
Attorneys for the children could also argue that separating children from their parents violates the spirit of the Flores settlement and its mission to protect the health and safety of children.
"The idea of creating an unacceptable environment where they're forced to be removed from their parents, I would say as a mother, that seems to undermine the health and safety of these children," said O'Mara Vignarajah of the Lutheran Immigration and Refugee Service.
--Editing by Kelly Duncan and Jill Coffey.
Update: This story has been updated with details about Judge Gee's Saturday order.