Law360 (August 7, 2020, 10:33 PM EDT) -- A California federal judge scolded U.S. Immigration and Customs Enforcement on Friday for "squandering" the month she gave to release migrant children from detention, saying the government's legal team is acting like they don't "understand how litigation works."
U.S. Department of Justice attorney Sarah Fabian was in U.S. District Judge Dolly Gee's crosshairs during a status hearing after explaining that the government believed it could exit negotiations over release protocols due to an earlier admission from the judge that an order to release detained migrant children by July 27 "was unenforceable by its own terms."
But that "unenforceable" remark concerned the government's ability to meet the deadline, Judge Gee clarified in the hearing, and shouldn't be "misconstrued" to allow the government to put off carrying out the order.
"You act like you don't understand how litigation works. … This isn't your first rodeo," she 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.
One hundred and thirty staff and detainees in the nation's three family detention centers tested positive for the virus since late June, according to court filings.
In the Friday hearing, Judge Gee said she was "somewhat comforted" by reports that ICE had stepped up efforts to curb the virus' spread. But she was alarmed over lackluster attempts to release the minor detainees.
"It seems a month has been squandered not doing much of anything," Judge Gee said. ICE could have spent the time reviewing individual parole requests, explaining why certain minors were denied release or ramping up efforts to place children with sponsors, she said.
The judge acknowledged the tensions between Peter Schey, the attorney in charge of the Flores class, and nonprofit advocates who directly represent the children, but the government can't use that infighting as an "opportunistic excuse" for why it exited talks on how to release the children, she said.
ICE can release the children in one of two ways: it can exercise its discretionary power and release parents alongside their children, or it can release the children to a sponsor. Detained parents can waive their children's release rights, which may effectively be their only option to keep the family intact.
How ICE will inform parents of these options, as well as its procedures for releasing the children, have stalled progress on the release order, the California court was told.
In court filings, ICE said that it protested negotiating a release protocol, but entered the talks under the belief that the release order would be carried out with or without its input. But once Judge Gee admitted the release couldn't occur without the protocols in place, ICE pulled out.
"There has been perhaps an exhaustion, the government can't agree to protocols that will allow family separation," Fabian explained.
"That position is disingenuous," Judge Gee fired back. "The government has chosen, for whatever reason it has, to implement a policy that has given rise to give parents that option."
During the hearing, Schey informed the court that attempts to create these procedures petered out when "about 95%" of the protocols were completed.
"To not have a procedure simply because you don't want to separate a child from a mother even when the mother wants the child released — that seems to us to be a pretty straightforward violation [of the order]," Schey argued.
Judge Gee refused to order ICE back to the table during the hearing, instead asking Schey why the detainees' lawyers couldn't just sidestep the government and inform the detainees of the children's release rights instead.
"I've never in my years of practice … heard of an attorney who was unwilling to let a client know what their rights or options are, even if they don't like them," she said.
Attorneys can inform the migrants of their release rights, but if there's no protocol to implement that, "then it becomes like the Wild West," he responded.
Judge Gee invited class counsel to submit proposed remedies for the government's failure to release the children without delay.
An ICE spokesperson said that the agency can't comment on pending litigation.
Representatives for the detained children class did not immediately respond to requests for comment.
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 class of children is represented by Carlos R. Holguín and Peter A. Schey of the Center for Human Rights and Constitutional Law and Leecia Welch, Neha Desai, Poonam Juneja and Freya Pitts of the National Center for Youth Law.
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 Suzanne Monyak. Editing by Abbie Sarfo.
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