A federal judge ruled Friday that the U.S. Department of Homeland Security must release the children currently held in family detention centers for failure to meet the standards for children’s care in the facilities.
Amid outbreaks of COVID-19 in U.S. Immigration and Customs Enforcement facilities — two in Texas, the Karnes County Family Residential Center and the South Texas Dilley Family Residential Center, and the Berk’s facility in Pennsylvania — U.S. District Judge Dolly Gee ordered DHS officials to release all children at these facilities by mid-July as the virus has caused thousands of infections.
Karla Vargas, a senior attorney with the Texas Civil Rights Project, which was active during the 2018 family separations at the U.S-Mexico border, said the order is like others Gee has handed down before.
Gee gave DHS a July 17 deadline to release all children in its care, but the court did not make an argument for the parents of those children to be released.
Vargas explains this is because the lawsuit that led to Gee’s order on Friday is rooted in the Flores Settlement, which specifically deals with the care of children in DHS’ custody
Gee’s order is essentially demanding DHS abide by a now more than 20-year federal court settlement.
The Flores Settlement, established more than 20 years ago, is an agreement put in place to protect children taken into custody at the southern border that was part of a class-action lawsuit first filed in 1985.
The settlement agreement, which was ruled on 12 years later in 1997, stipulated among other things how long the government can detain immigrants, dictating a 20-day maximum detention period for immigrant families.
The settlement was reached between the federal government and child welfare and legal advocates who had demanded government officials address child welfare violations within the immigration detention system that had gone unaddressed for years.
Because the decision only takes into account the children of immigrant parents, and not the parents or legal guardian who entered the country with them, Vargas is concerned DHS officials will force parents to choose between seeing their children released without them, or opting to keep their children inside facilities with them — facilities that Gee herself characterized as being “on fire,” with regard to the outbreak.
Vargas said in April, detainees were reporting to their respective counsel that DHS officials were approaching them and making them choose between keeping their kids in the facilities with them, or opt to have them released into the custody of the Office of Refugee Resettlement, or a suitable guardian.
In essence, DHS is once again reinstituting child separations as they had done in the summer of 2018 — when the Trump administration began separating parents from children at detention centers along the U.S.-Mexico border before a federal court put an end to the practice and the administration relented.
Vargas said it will be up to attorneys and immigration advocates to monitor how DHS reacts to the court’s order and how it implements it in the next several weeks.
“It’s important for us to keep an eye on this and to really see how DHS will move forward on this (order),” Vargas said. “We know (from past history) when the courts have ordered (DHS) to release children, they have found ways around it; in extremely cruel, and inhumane ways.”
Vargas explains that in April, after a similar but separate court order was handed down, DHS officials presented a false choice to parents: “If you want your child released, you’ll sign a document allowing us to separate you from your child. That is how you can have your child released,” she said.
Vargas said these children would then be placed with some kind of family after they’re approved for sponsorship, through the vetting process, but there was no guarantee that these children would actually be placed with the family members that the parents hoped would be placed with.
“There are no protections, this is a cruel choice by any measure; especially for children who have already suffered trauma — a trauma that has been compounded by being in jail, and so separating them from their parents, especially during this pandemic, is completely inhumane,” Vargas said. “What’s even more disgusting here is that this (decision) is completely unnecessary, the government, DHS, has complete authority, and complete discretion to release these families.”
As a result of the complaints in April, congressional members wrote a letter to DHS Acting Secretary Chad Wolf and Acting Director Matthew Albence, in which they underscore the concern they have over the reintroduction of the separation of families at government facilities.
Citing the Flores Agreement, the letter makes it clear DHS must explain its actions.
“Further, ICE appears to have approached parents, including those represented by counsel, with this choice without notifying counsel or any organization that could have provided legal assistance, creating additional confusion and fear among the families,” the letter dated May 21 stated. “The Department of Homeland Security (DHS) must immediately provide a detailed legal explanation for this new policy, and cease implementation until such explanation is provided to families in detention, counsel, and to Congress.”
Vargas said it is difficult to give an exact number of children and parents who could be impacted by Gee’s new ruling, but states “hundreds” at the three facilities are at risk due to DHS’ disregard for the health of its detainees. In early June, there were a little more than 120 kids inside the three facilities.
“It’s important to note that these are people being housed in these facilities that are not taking the precautions for COVID, especially with regard to these kids, who are particularly vulnerable,” the attorney said.
Vargas said they are keeping an eye out to see if the binary choice presented in April is part of the practice DHS will take up in implementing this order.
“Obviously that’s an absolutely cruel practice, and again, this is just as terrible in terms of family separations, not unlike the family separations we saw in 2018, but now the government is doing it behind closed doors,” she said.
DHS has until July 17 to meet Judge Gee’s order to release all migrant children that have been held for more than 20 days inside their three facilities, records show.