'Binary Choice' Leaves Detained Families In Limbo, Attys Say

By Nadia Dreid
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Law360 (May 21, 2020, 8:52 PM EDT) -- Detained mothers were ushered into a Texas courtroom earlier this month and asked to raise their hand if they agreed to be separated from their children. Over a two-day period, this "binary choice" was thrust upon detained families across the country, and their attorneys say it's the Trump administration's second whack at family separation.

Other parents were handed forms in English that they couldn't read and were asked to make the decision then and there — almost all said no, but a few who did sign said that they interpreted officials' directives to "sign here" as an order, immigration advocacy groups said Thursday.

It's a choice that forces parents to choose between keeping their children detained indefinitely and allowing them to go free, without assurances that they will ever see them again, according to their attorneys.

Counsel for the families says that they have asked to see copies of the documents that the parents signed or were asked to sign, but that their requests have not yet born fruit.

U.S. Immigration and Customs Enforcement officials have declined to turn them over, they said, arguing that they don't have to because the forms aren't legally binding and that no one's rights under the so-called Flores settlement have been violated.

"Honestly, I think it's a matter of semantics," said Bridget Cambria, executive director of immigration advocacy group Aldea. "I believe when they said they haven't asked anyone to waive their rights, they mean they didn't write that down on a piece of paper and ask them to sign it."

The United States has three facilities that it maintains specifically for detaining families together, two in Texas and one in Pennsylvania, and together they hold hundreds of families. Concerns over the conditions in these family detention centers sparked litigation as the novel coronavirus began its lethal trek around the country.

ICE takes a different view of the interviews it conducted with the families during the two day period in mid-May, saying Thursday that the agency was only doing what it had to in order to meet a court-ordered deadline.

A California federal court found that ICE had been flouting the Flores settlement, a 1997 agreement mandating that the government provide detained children with special considerations, and demanded that it conduct individualized parole determinations to ascertain whether the minors ICE was detaining could be released.

Parents were only asked to sign or initial the form in order to prove they had responded, the agency said.

"Despite misrepresentations, this form is nothing more than an internal worksheet used to document answers to questions regarding parole," the agency said Thursday in a statement. "It is not a legally binding document and does not convey any legal implications on the family unit."

But the immigration groups maintain that their clients are terrified, with one mother telling a legal service provider that she couldn't focus enough to ask questions because officials said that "they were going to take our children."

While families remain detained, litigation is brewing over their conditions during the pandemic. Immigration groups cite concerns over the lack of resources parents are given to disinfect their living space, and a D.C. federal lawsuit argues that conditions remain crowded despite a dwindling population in the centers.

There is evidence that the government is working to bring the number of detained families down, with the three centers operating at around 11% capacity, according to court records.

Its efforts have earned the agency credit from the court, but attorneys representing the families say that any benefit gained from reduced capacity is quickly erased by the detention center's decision to close off parts of the facilities and move people closer together.

--Additional reporting by Suzanne Monyak. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.

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