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Law360 (August 17, 2020, 5:27 PM EDT) -- Despite a court order, U.S. Immigration and Customs Enforcement still isn't releasing migrant children from detention or informing detained parents that they have the right to have their children be released, attorneys for the children have told a California federal judge.
In a 40-page motion Friday, attorneys for the children asked U.S. District Judge Dolly Gee to enforce her court order and a settlement agreement requiring ICE to release migrant children who are not flight risks or a danger to themselves or others, saying that ICE has conceded that no accompanied children are being released.
ICE is also "keeping parents in the dark" about their children's rights to be released to a sponsor under the agreement, according to the motion.
"Even if a parent believes it is in their child's best interest to be released, it appears ICE has no procedures in place to assess potential sponsors identified by a parent or to effect the prompt release of a minor to a designated sponsor," the attorneys said.
Judge Gee oversees the long-running Flores class action, litigation that has established bedrock standards of care for minors in government custody. In June, she ordered the government to comply with those standards and release migrant children from detention centers "on fire" with coronavirus.
According to court filings, 130 staff members and detainees in the nation's three family detention centers have tested positive for the virus since late June.
As part of the order, 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
In July, Judge Gee gave ICE more time to comply with her order, but earlier this month she scolded the federal agency for "squandering" the month she gave it to release the children.
In their motion Friday, attorneys for the children said ICE's failure to advise parents about their children's rights and failure to vet potential sponsors and release children to them "effectively amounts to a no-release policy" that violates the Flores agreement and Judge Gee's order.
The detention of children with nonrelative adults in facilities that are not licensed for dependent children is detrimental to their welfare, the attorneys said. The Flores agreement doesn't allow ICE to eliminate accompanied children's rights by not telling parents about those rights and having no procedures in place to release children if that's what a parent wants to do.
The attorneys also argued that ICE's "history of failing to comply" with the agreement and the court's order warrants a finding of contempt and possibly sanctions, according to the motion.
ICE has been aware of its responsibility to develop some protocol to advise the class of children and their detained parents of their rights under the agreement and to create infrastructure to allow the release of children to a designated sponsor, the attorneys said.
"To the extent compliance with this court's prior orders may provide a binary choice for parents, the difficult choice they may face is brought about by defendants' heartless and largely irrational unwillingness to release parents with their children, regardless whether the parents are flight risks or a danger," the attorneys said.
In a statement to Law360 on Monday, ICE declined to comment on the pending litigation, but noted that the court has requested briefing by both parties, including on a process that considers the impact on family units.
"As part of the Department of Homeland Security's homeland security mission, our trained law enforcement professionals adhere to the Department's mission and values, and uphold our laws while continuing to provide the nation with safety and security," the agency said.
A hearing on the matter is set for Sept. 4.
Counsel for the children did not immediately respond to a request for comment.
The class of children is represented by Carlos R. Holguín and Peter A. Schey of the Center for Human Rights and Constitutional Law, Bill Ong Hing of the Uniuversity of San Francisco School of Law Immigration Clinic and Stephen Rosenbaum of La Raza Centro Legal Inc.
The federal government is represented by Sarah B. Fabian, Nicole N. Murley, William C. Silvis and William C. Peachey 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.
--Additional reporting by Alyssa Aquino and Suzanne Monyak. Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
