Citing newcases at detention facilities for migrant families, the federal judge overseeing litigation surrounding protections for undocumented minors in U.S. custody on Friday ordered Immigration and Customs Enforcement (ICE) to release children the agency is holding with their parents or legal guardians.
U.S. Judge Dolly Gee of the federal district court in Los Angeles gave ICE a July 17 deadline to release all minors who have been in the agency's custody for more than 20 days. Gee, who oversees the government's compliance with the Flores Settlement Agreement, which governs the care of minors in U.S. immigration custody, cited the first coronavirus cases among the migrant families ICE holds at its three Family Residential Centers, or FRCs.
"Given the severity of the outbreak in the counties in which FRCs are located and the Independent Monitor and Dr. Wise's observations of non-compliance or spotty compliance with masking and social distancing rules, renewed and more vigorous efforts must be undertaken to transfer (children) residing at the FRCs to non-congregate settings," Gee wrote in her order.
"The FRCs are 'on fire' and there is no more time for half measures," she continued.
Gee said ICE has two ways to release minors in its custody before July 17. The agency can release them to other family members if their parents consent to being separated from them. Or ICE can remove families from detention together, allowing them to continue their immigration proceedings within communities in the U.S.
For the latter option, ICE would have to exercise its broad release authority to free the parents, who are not entitled to any of the protections in the Flores Settlement, including its hallmark mandate that the government promptly remove migrant children from custodial settings.
Peter Schey, the co-counsel in the original lawsuit that paved the way for the Flores consent decree, praised Friday's order.
"We are grateful that the federal court has again stepped into this crisis and ordered the release of all minors to relatives in the U.S. in the next three weeks as long as the parent detained with the child wants their child released," Schey wrote in a statement to CBS News. "Some detained parents facing deportation brought their children to this country to save them from rampant and unchecked violence in their home countries and would prefer to see them released to relatives here rather than being deported along with the parent to countries where children face harm, and sometimes death."
But Amy Maldonado, an immigration attorney working on another court case to free all migrant families from detention, said ICE should not ask parents if they wish to be separated from their children.
"Separating children from their parents is harmful. Not a single parent who is in family detention consents to their child being separated from them. It is never something that the attorneys on the ground at the three non-profits that represent these kids and their parents have agreed or put forth to the government," Maldonado told CBS News. "The only reasonable thing to do is for ICE to release the parents with the children."
Maldonado said she and other lawyers representing the families in the separate case in the district court in Washington are considering filing a new motion if ICE does not release parents and children together.
In response to another order from Gee in April, ICE officials recently conducted a parole review of all the children in its custody, but it denied most of their requests for release. Among other reasons, ICE said it did not grant parole to most of the families because the parents did not agree to be separated from their children so the minors could be released to sponsors.
"A lot of these parents have already been asked if they want to waive their children's rights, and they said 'no,'" said Alexandra Cohen, the advocacy division supervisor at the Refugee and Immigrant Center for Education and Legal Services.
In addition to the 11 coronavirus cases among migrant families at the, more than 2,500 adult ICE detainees have tested positive for COVID-19. Two immigrants have died of coronavirus complications while in the agency's custody.
ICE detains adult immigrants and families with children the government seeks to deport. An order by Gee in 2015 generally prohibited the agency from detaining minors with their families in unlicensed facilities for more than 20 days, barring limited exceptions.
The agency is currently holding approximately 124 children with their parents or legal guardians at three family detention facilities in Texas and Pennsylvania.
In her order Friday, Gee required ICE to provide "detailed individualized" explanations if the agency does not release minors who have been held for more than 20 days. Saying that families are named in federal litigation or have pending adjudications by immigration judges or asylum officers would not be "acceptable explanations," she said.
"For each minor who remains detained at an FRC for more than 20 days, the absence of a suitable sponsor, a parent/guardian's declination of waiver of Flores rights, or a prior unexplained failure to appear at a scheduled hearing would be a satisfactory explanation for continued detention if that explanation is verified in a declaration by an ICE representative under penalty of perjury," Gee continued in her order.
Gee also ordered ICE to "urgently enforce" measures to contain the spread of coronavirus within the family detention centers. She cited a recent report in which the independent monitor tasked with reviewing ICE's compliance with the Flores agreement said that officials at the two family detention facilities in Texas were not fully enforcing social distancing or mask wearing guidelines.
An ICE spokesperson said Saturday the agency is reviewing Gee's order.