Judge Finds Order to Release Immigrant Children Now ‘Unenforceable’

Immigrant children play outside a former Job Corps site that now houses them in Homestead, Fla. (AP Photo/Wilfredo Lee)

LOS ANGELES (CN) — With the Monday deadline looming for U.S. Immigration and Customs Enforcement to either release detained immigrant children or release immigrant families entirely, a federal judge has ruled her release order was “unenforceable” due to a legal impasse.

U.S. District Judge Dolly M. Gee, an Barack Obama appointee, oversees the landmark 1997 Flores settlement that sets national standards for the detention, release and treatment of all immigrant children in federal custody.

Settlement monitors appointed by Gee reported in recent months on worsening health conditions inside facilities holding immigrant families and on the unnecessary delays in granting sponsors approval to receive youth in their homes.

In June, Gee ordered ICE to release immigrant children who have been held for more than 20 days in the agency’s Family Residential Centers, finding the delays and health conditions justify the action. 

Under the order, ICE can release children to suitable sponsors or to non-congregate settings that are Covid-19-free, provided there’s consent from their adult guardians or parents.

The agency could also exercise its discretion to discharge children with their guardians or parents, a move Gee cannot order since she has no jurisdiction over the parents or guardians. 

But both Flores counsel and the federal government requested a deadline extension after parents had not agreed to their children’s release and ICE had not released the parents or guardians.  

Gee agreed to extend the deadline for release to July 27.

But with the deadline approaching, Gee said in a 3-page order issued Saturday her release mandate was “unenforceable by its own terms” since her terms of release had not been met. The status of the release order is unclear but Gee said Flores counsel can continue to inform class members and their parents or guardians about their rights under the settlement.

Gee ordered the parties to submit a joint status report by Aug. 5 and also denied the federal government’s ex parte bid to stay the release order.

Attorneys for the detained immigrant children did not immediately respond to a request for comment. 

Gee also found the federal agency can continue to abide by her April order directing ICE to release immigrant children from detention centers where conditions are unsafe due to Covid-19.

“Of course, nothing in the court’s prior orders precludes ICE from continuing to promptly release eligible class members, as required under the [Flores settlement agreement] and as this court has ordered time and again,” Gee wrote regarding the 100 immigrant children in ICE custody. 

An ICE spokesperson did not respond to a request for comment by press time. 

Attorneys for the Justice Department asked Gee last week to decertify Flores class members based on a group of nonprofits’ claim that class counsel did not adequately represent their clients.

The nonprofit legal service providers said in their motion to intervene that the current release order under Flores would force families to separate as adult detainees could either allow their children to stay in detention centers or move in with a sponsor.

The Justice Department argued too much time had passed for the nonprofits to intervene, given that the consent decree was entered into record 23 years ago.

Both parties should remember that family separation is barred under Flores, Gee wrote in her order Saturday.

“The court urges all involved in this matter to pause, take stock, and stop disseminating the fiction that families will be separated as of the court’s July 27, 2020, deadline,” Gee wrote in her order. “Defendants have been enjoined from detaining parents without and apart from their minor children absent parental consent or a determination that the parent is unfit or presents a danger to the child.”

A hearing in the matter is set for Aug. 7 in the Central District of California. 

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