LOS ANGELES (CN) — At a hearing Friday, a federal judge asked government officials why officers at three immigration detention facilities asked undocumented parents if they wanted to be separated from their children amid the Covid-19 pandemic.
According to court filings, the officers apparently did not broach the topic with any context. They did not discuss the legal rights the parents have under a landmark settlement agreement that has been the standard in immigration detention facilities for decades, which requires the prompt release of immigrant children from federal custody.
The parents were essentially presented with a take-it-or-leave-it proposal, the court filings said. None of the parents agreed to be separated from their children even though federal detention facilities operated by U.S. Immigration and Customs Enforcement and the Office of Refugee Resettlement are congregant settings that do not allow for social distancing amid the novel coronavirus pandemic.
On April 24, U.S. District Judge Dolly M. Gee ordered children held by the Office of Refugee Resettlement or ICE who have an immediate relative — or relatives through legal marriage — or other sponsor that can care for them to be released.
Due to pandemic-related closures, the government can temporarily place children with sponsors who have undergone basic background checks instead of the more intensive checks that require fingerprint scanning at brick-and-mortar businesses.
Gee’s order applies to more than 3,400 immigrant children in facilities operated by ORR and hundreds more operated by ICE.
But parents held in federal detention facilities say they were presented with the “binary choice” by detention officers after Gee’s order was put into effect. They say the question was confusing because parents were presented with paperwork they would have already seen and answered when first processed at the facilities on whether they wanted to be separated.
During Friday’s video status conference, Gee asked if the federal agencies were trying to get parents to agree to a waiver or exemption from the 1997 landmark Flores settlement.
ICE’s juvenile coordinator Deane Dougherty agreed it would have been confusing for parents but officers were only trying to comply with the court’s order and were not trying to get a waiver from the Flores settlement.
It wasn’t simply a “binary choice” as described by the plaintiffs, but if “by virtue of asking the parent is there a sponsor, is there somebody, is there an address that we could send the child to… I mean it’s semantics,” she said.
She continued: “We’re very much trying to comply with your order, but given there is kind of a gray area in how to proceed with that… we would very much welcome direction from you on how we could be in more compliance.”
Gee was not convinced by ICE’s approach to her order.
“If that was the case, why have untrained officers broach such a sensitive subject at all?” Gee asked. “This inquiry seemed to be neither fish nor fowl. It served no useful purpose other than to inform me what I already know.”
The judge noted that when presented with the choice of being separated from their children without the necessary context of their rights, the parents are essentially being presented a Hobson’s choice or being told to take it or leave it.
She said the federal government could enlist the class members’ attorneys to present the options on her order and what options are available to class members and their children.
“I’m not going to suggest at this point how it should be done but I want to make clear on the record I am in no way in favor of presenting parents with this Hobson’s choice,” Gee said. “But given that the government is hellbent on detaining these parents even during this Covid-19 crisis maybe you need to give more specific explanations for why the minors must remain in indefinite detention too.”
She ordered the parties to meet and confer on how they can coordinate a response to the court’s order. She asked ICE to give an updated report with explanations on each minor being detained beyond 21 days in federal custody. Gee also ordered a report from ORR on why there were delays on the release of children to custodians or guardians if they have already been vetted.
Finally, Gee ordered the immediate release of a minor, identified as JMA in court records, whose release was pending further clarification on the study of the home where the child was to be placed.
As of March 29, there were over 2,200 minors held in ORR custody; by May 13 the number had dropped to 825, according to court documents. Gee said that was a sign of good effort and progress made.
However, the judge noted there was zero compliance in releasing children who have vetted custodians that are waiting for fingerprinting services.
Gee also asked that ICE and ORR provide medical care data on how they’re ensuring Covid-19 prevention practices, identifying children with serious medical conditions when they’re admitted and whether or not those children need to be interviewed remotely.
Plaintiffs’ attorneys Peter A. Schey and Carlos Holguin with the Center for Human Rights and Constitutional Law were also present during the status conference.
Emails to the parties’ spokespersons for comment were not answered by press time.