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ICE asked migrant parents whether they wished to be separated from their children, agency tells court

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Click here to read the CBS News article entitled ICE asked migrant parents whether they wished to be separated from their children, agency tells court

by Camilo Montoya-Galvez / Published May 17, 2020

U.S. immigration authorities said in a court filing late Friday that one of the main reasons detained migrant children were not released this week as part of an order by a federal judge is because their parents did not agree to be separated from them.

In the filing, U.S. Immigration and Customs Enforcement listed several reasons why the agency denied parole to virtually all of the 185 minors in its custody this week. One of them was labeled in spreadsheets as “Parent Does Not Wish to Separate.”

Friday’s court filing indicates that migrant parents were recently asked, among other questions, whether they wished to be separated from their children, so the minors could be released to relatives or other sponsors.

On Thursday, groups that provide legal services at the three family detention centers ICE oversees in Texas and Pennsylvania said their clients were asked, without their attorneys’ knowledge, to choose between staying in detention indefinitely or allowing their children to be released to sponsors — without them.

The advocates accused ICE of presenting parents with this “binary choice,” a policy which could lead to family separation and that the administration has reportedly considered in the past to deter families from crossing the border. Prior to Friday’s court filings, an ICE spokesperson said the agency had “not implemented what has been referred to as ‘binary choice’ at this time,” and was instead “exploring all options” in response to federal litigation.

In one of the court filings Friday, a top ICE official said officers at the three family detention centers in Texas and Pennsylvania conducted “parole determinations” for all the children in its custody in response to an order late last month by the federal judge overseeing litigation related to the Flores Settlement Agreement, which governs the care of migrant minors in U.S. custody.

On April 24, Judge Dolly Gee of the U.S. District Court in Los Angeles found that the government was violating that agreement and ordered it to “make every effort to promptly and safely” release the children in its custody who have suitable sponsors, don’t pose a danger to themselves or others and are not flight risks.

ICE’s Juvenile Coordinator Deane Dougherty said in Friday’s filing that the agency complied with Gee’s order by questioning parents about possible sponsors for their children and other factors that would affect a decision to release detainees. Dougherty said officers used parole worksheets in use since 2017 and not any other forms during the review. She also said officers did not ask parents to waive the rights their children have under the Flores agreement.

Spreadsheets included with the filings show the agency only granted parole to five minors at the family detention center in Dilley, Texas. It’s unclear if the children granted parole will be released with their parents, since the filings don’t specify it.

The rest of the children were denied parole on the grounds that they were a flight risk, that parents did not wish to be separated from them, that they had orders of deportation and pending decisions from immigration judges or asylum adjudicators. Other reasons included that the children were involved in federal litigation or had “Purposefully evaded U.S. Immigration Controls.”

Reached for comment on Friday’s filings, an ICE spokesperson said the agency “has not instituted binary choice or separated any parents from their child pursuant to ‘binary choice,’ and ICE has not implemented any new forms to conduct the new parole determinations as required by the court — any assertion to the contrary is plainly false.”

ICE officials said the form used during the custody review was created in the wake of an order from Gee in 2017.

Peter Schey, one of the two attorneys who filed the original lawsuit that prompted the Flores agreement in 1997, said the parole review ICE conducted is not what Gee asked for. He said parents reported that they were given forms that were in English, even though most of them do not read the language.

Even though Flores only covers migrant minors, Schey said ICE has broad discretion to release their parents as well. He said the government should be reviewing whether to release children under the terms of the Flores agreement, not under parole, which U.S. laws say can only be granted in “urgent” humanitarian or public benefit circumstances.

“(Parole) is highly discretionary,” Schey said. “Whereas the Flores Settlement, the release is not discretionary. It says, ‘shall release’ unless the child is a flight risk.”

Bridget Cambria, an immigration attorney who represents families held by ICE at the Berks Family Residential Center in Pennsylvania, said parents called her immediately after they were asked whether they would be willing to allow their children to be released without them. “It startled them and they all said no,” Cambria said. “They were scared.”

“One mother told an officer, ‘there’s no way you’re taking my only child away from me,'” Cambria told CBS News. “Most of the mothers became very emotional and cried most of the day, because even though they said ‘no,’ there was a fear that it didn’t matter what they said.”

Cambria said ICE could have avoided alarming parents by advising their lawyers that it would ask them these questions. “For me, to ask a mother, which is what they did in Berks, to give up their one-year-old daughter, to me is unconscionable. I think that’s why they need to be at least held to account.”

In a separate filing on Friday, the Justice Department lawyer representing ICE asked to file the spreadsheets under seal, citing privacy concerns.

The Flores agreement originally applied only to migrant children classified as unaccompanied. But in 2015, Gee ruled that “accompanied” children were also covered and that they should generally not be held in secure, unlicensed facilities with their families for more than 20 days.

The Trump administration has published a rule it hopes will supersede the Flores settlement and allow it to detain families indefinitely in detention centers that do not need a state license. Gee has so far blocked it from taking effect.

According to spreadsheets submitted Friday, many of the children in ICE custody with their families have been detained for more than 20 days; some since August 2019.

Advocates have been urging ICE to release all migrant families and most adults from detention during the coronavirus pandemic, saying detainees are at increased risk of contracting the virus while in congregate settings. The agency said in its court filings Friday that no staff or detainees at the family detention centers have tested positive for coronavirus. However, more than 980 single adults in ICE custody have tested positive for the virus, according to the agency’s latest tally.

Judge orders release of migrant children despite challenges presented by pandemic

By Dennis Romero

April 24, 2020, 10:33 PM PDT / NBC NEWS link to article

A federal judge on Friday ruled that the Trump administration was again violating a longstanding agreement that compels the government to release migrant children detained at the border within 20 days and ordered the minors be released.

Plaintiffs represented by the Center for Human Rights and Constitutional Law have been challenging the child detention policies of the administration of President Donald Trump in Los Angeles federal court, where they’ve alleged the coronavirus crisis has caused further delays in the mandated release of migrant children.

The challenges are being waged under a 1997 settlement between immigrant advocates and the government known as the Flores agreement. It generally requires children detained at the border and kept in nonlicensed facilities to be released within weeks.

Los Angeles-based U.S. District Court Judge Dolly Gee oversees the settlement and issued a mixed ruling to enforce the Flores agreement and again ordered the government to “expedite the release” of children in its custody.

“This court order could very well prevent hundreds of children from becoming seriously ill with COVID-19 infection, and may even save some children’s lives,” longtime plaintiffs’ attorney Peter Schey said by email. “On behalf of the 5,000 detained children we represent, we are deeply grateful for the court’s humane order.”

The Flores agreement has faced multiple challenges since the Trump administration in 2018 enacted a policy of separating family members at the border as a means of dissuading illegal crossings. The administration backed down but was slow to reunite children when their parents.

Plaintiffs alleged the U.S. Office of Refugee Resettlement stopped releasing children to parents, relatives or potential guardians in New York, California and Washington to avoid becoming entangled in those states’ stay-at-home rules during the pandemic.

They also argued the government was dragging its feet by halting the release process for some children because parents, relatives and potential guardians couldn’t easily be fingerprinted for background checks.

Plaintiffs said delays endangered children as the virus could spread in detention facilities, citing a nonprofit facility in Texas “placed under a 14-day quarantine order,” according to Friday’s ruling.

They also alleged that a teen turned 18 during “quarantine” and was released to ICE rather than going to a family placement program “already secured for him.”

Gee did not agree with all those claims. But she concluded: “ORR and ICE shall continue to make every effort to promptly and safely release” children represented by plaintiffs.

Family separation is back for migrants at the U.S./Mexican border, say advocates

By Julia Ainsley

May 15, 2020, 3:05 PM PDT / NBC NEWS link to article

NBC News obtained a copy of a form ICE is allegedly distributing in family detention centers that lets parents apply for minor children to be released.

WASHINGTON — Several immigrant rights organizations are outraged by a new choice U.S. Immigration and Customs Enforcement is presenting to migrant parents: Separate from your child or stay together in detention indefinitely.

Starting on Thursday, the groups claim, ICE began distributing a form in all three of its family detention centers that would allow parents to apply for their minor children to be released. The form, a copy of which was obtained by NBC News, states that it is in compliance with the Flores court agreement, which prohibits ICE from holding minors for more than 20 days.

The released children are placed with family members, sponsors or placed in the custody of the Department of Health and Human Services.

The Trump administration faced intense criticism for a Zero Tolerance policy in 2018 in which undocumented migrant children were separated from parents who had illegally crossed the order. The policy was implemented in May 2018 but reversed after an outcry in June.

Click here to see the form.

The current, “voluntary” concept was previously termed “binary choice,” but has never been fully implemented. Now, lawyers representing clients in ICE family detention say parents may be persuaded to separate from their children if they are worried about exposing them to COVID-19 in detention.

The timing is no coincidence, said Shayln Fluharty, director of the Dilley Pro Bono Project, which provides legal services for families in detention in Dilley, Texas. A federal judge recently told ICE it was not in compliance with the Flores agreement, and the forms, said Fluharty, are a way for ICE to show that these parents have chosen to keep their children in detention.

Fluharty said she expected the government to release children to show the judge it was in compliance, not to ask parents to waive their rights to have their children released.

In a statement, a spokesperson for ICE said ICE “is exploring all options in response to Judge Gee’s most recent order which stipulates that ICE safely release children in its custody, who don’t pose a public safety or flight risk, to sponsors within the U.S. ICE continues to work to implement the requirements of the order, and has not implemented what has been referred to as ‘binary choice’ at this time.”

ICE detention centers, which hold immigrants in large open-floor cells with many detainees sharing the same toilet, sink and living area, are becoming a hotbed for COVID-19 infections. The New York Times reported 85 cases in ICE detention in New York and New Jersey. ICE confirmed the first COVID019death of a migrant in its custody on May 7. The migrant was at the single adult detention facility in Otay Mesa, California.

Families Together, a group that advocates for the reunification of separated migrant families, Tweeted on Thursday night: “@ICEGOV gave families a choice today — we’ll let your children go if you give them up. But not you. In the middle of a pandemic. This is horrific.”

RAICES of Texas, which offers legal services to refugees and immigrants, Tweeted on Thursday, “ICE is asking parents to sign a form that would permit their children to be separated from them and released from detention, while forcing the parents to remain detained.”

Judge Finds Government Is Violating Protections for Migrant Children During Pandemic.

By Camilo Montoya- Galvez

APRIL 24, 2020 / 11:16 PM / CBS NEWS link to article

The federal judge overseeing a 1997 court settlement that governs the care of migrant children in U.S. government custody ordered the Trump administration on Friday to promptly release minors from immigration detention, finding yet again that officials are violating the long-standing agreement.

Judge Dolly Gee of the U.S. District Court in Los Angeles found that U.S. Immigration and Customs Enforcement, which detains migrant families with children, and the Office of Refugee Resettlement, which has custody over unaccompanied minors, are both violating the Flores Settlement Agreement during the coronavirus pandemic, for distinct reasons.

Over the years and throughout different administrations, Gee has found that the government has violated elements of the settlement, primarily its requirement that migrant children be released from custody without “unnecessary delay.” But Friday’s order considered the risks faced by immigrants detained in close quarters during a deadly, global pandemic. In a different order last month, Gee called immigration detention centers “hotbeds of contagion.”


The order applies to the approximately 2,100 unaccompanied minors in ORR custody, as well as the 342 children held with their families at the three ICE family detention centers. The government has released hundreds of migrant children since Gee issued a temporary restraining order in March requiring their quick release under the parameters of the Flores agreement. But on Friday, Gee said “greater speed” is needed to remove more minors from congregate settings.

Gee required both ICE and the U.S. refugee agency to “make every effort to promptly and safely” release the children in their custody who have sponsors, don’t pose a danger to themselves or others and are not flight risks. She prohibited the agencies from using certain justifications to continue detaining minors.

Gee said the U.S. refugee agency can’t block the release of children with sponsors simply because they were formerly in Mexico with their family under the Migrant Protection Protocols and have a pending case linked to that program. Some parents returned to Mexico under the MPP policy have sent their children to seek asylum alone at the U.S. southern border, since unaccompanied minors can’t be placed in the program, per government policy. 

ICE, meanwhile, can’t justify not releasing families with children because they are named in federal litigation or due to the fact that they are waiting for a decision by an immigration judge or for officials to adjudicate their credible fear screenings, the first step in the asylum process.

Gee also ordered the U.S. refugee agency to temporarily waive the fingerprint requirement for some immediate family members, distant relatives and unrelated adults seeking to sponsor unaccompanied migrant minors. While coronavirus shelter in place orders remain in effect, she said officials can release minors to these sponsors without fingerprinting them if that is not available, as long as red flags don’t show up in their background checks. The sponsors also have to agree to submit fingerprints “as soon as practicable.”

Friday’s order stems from a request by lawyers involved in the decades-long Flores litigation for Gee to order the government to rapidly release all children with sponsors. This week, the attorneys said the release of minors is particularly urgent as the coronavirus continues to spread throughout facilities for detained immigrants. 

At least 59 migrant children in ORR-overseen facilities in New York, Texas, Illinois and Pennsylvania have tested positive for coronavirus, according to the agency’s latest tally. ICE has not reported any cases at the three family detention centers in Texas and Pennsylvania, but has identified at least 317 positive coronavirus test results among adults in its custody and 35 among direct detention center employees, as of Friday.

The U.S. refugee agency has discharged hundreds of children in recent weeks, with the number of minors in its care dwindling from more than 3,500 in early March to the current 2,100 in-custody population. But the agency has also been receiving very few children from border officials, who are now expelling most unauthorized migrants, including minors who arrive at the border alone, by invoking expansive turn-back powers under a public health order they say is designed to curb the spread of the coronavirus. 

Gee said ICE deserved “some credit” for moving away from a “laggardly initial response” and implementing a “rapidly-evolving response to the pandemic” in the wake of the litigation by the children’s lawyers. She also said she appreciated that ICE has released dozens of families in recent weeks. But she said the children’s lawyers, through first-hand accounts from detained immigrants, have undercut the “optimistic portrait” of the agency’s efforts to maintain “safe and sanitary” conditions for children, another Flores Settlement requirement.

Declarations by ICE “paint a picture of sanitary, social-distance-compliant, and medically appropriate facilities,” but that picture is “tarnished by declarations of detainees and their legal services providers,” Gee said.

“(Immigrants) report inaccessible or ineffective medical treatment, deteriorating health while in custody, insufficient soap and sanitation supplies, lack of thorough cleaning by staff, and insufficient use of (personal protective equipment) by staff or detainees,” Gee wrote in her order.

Peter Schey, one of the two attorneys who filed the original lawsuit that prompted the Flores agreement, praised Friday’s order.  

“I think Judge Gee’s order will result in an acceleration of the release of both accompanied and unaccompanied minors in the coming days and weeks as the judge made very clear the government’s current policies are in breach of the settlement,” Schey, the president of the Center for Human Rights and Constitutional Law, told CBS News.

“The order will put pressure on them to not slow down their releases of children in light of the COVID-19 pandemic,” Schey added.

In her order, Gee also required court-appointed juvenile coordinators at ICE and the U.S. refugee agency to file monthly reports starting in May on the agencies’ efforts to expedite the release of children and to protect them during the pandemic.

An ICE spokesperson said the agency is reviewing Friday’s order. Officials at ORR did not respond to a request for comment.

First published on April 24, 2020 / 11:16 PM

© 2020 CBS Interactive Inc. All Rights Reserved.

CNN: Federal judge to appoint independent monitor for detained migrant children

Los Angeles (CNN) – A federal judge said Friday she will appoint an independent monitor to keep tabs on the conditions migrant children are kept in after they are detained along parts of the southern border.

“There continue to be persistent problems,” US District Judge Dolly Gee said in a status hearing at a federal courthouse in Los Angeles, adding, “There seems to be disconnect between what both sides see at these facilities.”

Read the full CNN story here.

Reuters: Life in the ‘dog pound’

Our ongoing work to give voices to families and children held in detention facilities across the US was highlighted yesterday in a powerful article by Reuters, highlighting individual’s experiences in vivid detail.

“I do not tell [my son] that we are already here. He wouldn’t believe that the United States would treat us this way.” —Mayra

Mayra’s full statement can be found here.

Read the full story on Reuters here.

AP: Immigrant Children Describe Hunger and Cold in Detention

The scathing report we filed this week in federal court offers vivid details of individual childrens’ experiences in detention centers after being separated from their families.

They have spoken out loud and clear, and what they’ve said is they are experiencing enforced hunger, enforced dehydration, enforced sleeplessness. They are terrorized, and we think it is time for the courts and the public to hear their voices.

Read more of this story at the Associated Press.