Federal officials are threatening to split up mothers and children if they’re forced to dismantle three family detention centers holding nearly 1,000 migrant women and children, most of whom said they fled violence in Central America.
U.S. Department of Justice lawyers began intense talks this week with attorneys representing the interests of migrant mothers. They will try to negotiate a way to keep the facilities open after a federal court in California distributed a draft ruling concluding that the Obama administration’s use of family detention centers violates an 18-year-old court settlement regarding the detention of migrant children.
The lawyers are under a strict gag order not to talk about the case or the draft ruling. But McClatchy has obtained memos circulated by the mothers’ attorneys and a copy of the April 24 transcript detailing the court’s concerns.
U.S. District Judge Dolly Gee gave the two sides until May 24 to come up with an agreement before she is expected to enter an official ruling.
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Federal attorneys acknowledged the family detention system could collapse if the ruling stands. Leon Fresco, a deputy assistant attorney general, warned the court that such a ruling would actually encourage separation of parents and children and turn minors into “de facto unaccompanied children.”
“This isn’t a situation where we want to detain the mother. These are situations where we have to detain the mother, your honor,” Fresco told the court.
The practice of family detention has reached a tipping point. Multiple lawsuits against family detention have been filed in California, Texas and the District of Columbia. Advocates for the mothers say it’s unlawful to detain children with their parents in jail-like facilities.
The government has dug in its heels, arguing that it needs greater flexibility when detaining parents who are considered a flight risk but also that it needs to send a strong message to Central America that it’s not OK to cross the border illegally.
The issue has even made its way into the 2016 presidential campaign. Former Secretary of State Hillary Clinton used the controversy last week to take an unusual shot at her former boss.
At a campaign stop in Nevada, the Democratic candidate for president criticized President Barack Obama’s use of family detention and called for more “humane treatment.”
‘In practice ... a nightmare’
The administration’s rapid expansion of facilities that hold mothers and children is a response to last year’s surge of mostly Central American families and children illegally crossing the southern border. Many fled from the most violent parts of El Salvador and Honduras, which has the world’s highest homicide rate. An estimated 52,000 family units were caught entering the country last year, according to U.S. Immigration and Customs Enforcement statistics.
In court documents, administration lawyers acknowledged that the government’s policies may have contributed to the problem. The practice of releasing captured migrants to await court hearings was incorrectly perceived as a form of permission to remain in the country, the government said.
That perception had to be changed. The government can and does use ankle bracelets to ensure some migrant families show up for their court dates. But bracelets don’t send as strong a message back home.
Although Immigration and Customs Enforcement officials said the agency could not discuss pending litigation, spokeswoman Gillian Christensen said the family residential centers are a “humane alternative for maintaining family unity” as they await their immigration hearings or are removed. She said ICE ensures the residential centers operate in an open environment, which includes medical care, playrooms, education and access to legal counsel.
“Family residential centers are one of many tools used to address the growth in apprehensions of parents and children at our southern border,” she said.
Lawyers for the migrant mothers took the Obama administration to court earlier this year, accusing the Department of Homeland Security of violating a 1997 settlement, Flores v. Meese, which required migrant children be released to family or, if held, be housed in the least restrictive environment.
The government argued the agreement didn’t take into account family detention, which didn’t begin until 2001. Fresco told the court that the government needed greater flexibility if the parent is considered a flight risk or if the officials think it’s safer to have the children with the parent.
He said he worried that if officials separated families, smugglers would seize the opportunity and take advantage of young migrants, pretending to be children’s parents in order to avoid being detained.
“The outcome of this is going to be to separate families, create uncertainty where we don’t have uncertainty now and to endanger children,” Fresco said, according to the transcript.
Bryan Johnson, a New York immigration lawyer consulting with the mothers’ attorneys, called the threat of dividing families real but difficult to execute. The government likely would have to put some kids in foster care and could face due process challenges if officials tried to separate the mothers and their children without proper consent from the parents, he said in an interview.
“In practice it would be a nightmare,” Johnson said. “It would be like something out of a fascist country.”
Playgrounds, field trips, well-stocked fridges
The Department of Homeland Security resurrected the almost abandoned practice of detaining mothers and children to deter future illegal immigration. The government went from having one lightly used 100-bed facility in central Pennsylvania and added three much larger facilities in Texas and New Mexico.
A New Mexico facility has since closed, but U.S. authorities continue to expand the three remaining facilities with a goal of housing 3,500 detainees by the summer.
At the facilities in Karnes City, Texas, and Berks County, Pa., there have been allegations of poor conditions and sexual abuse. But ICE officials say the detainees are extremely well cared for. The facilities have playgrounds, playrooms and televisions. The children get to go on field trips to sporting events and educational sites.
Videos of the Karnes City and Dilley, Texas, facilities provided by ICE show kids – whose faces are blurred – playing video games, laughing on pristine soccer fields and calling out letters and numbers in modern-looking classrooms. The videos also show well-stocked refrigerators and state-of-the-art medical equipment.
Carol Anne Donohoe, a Pennsylvania lawyer who represents several clients at the Berks County facility, dismissed the video footage as government propaganda.
“They’re taking these pictures, making a rosy idealized world for this place, when the reality is it’s not,” Donohoe said. “These kids have been locked up for a year and are traumatized.”
Christensen said the videos are simply a response to high demand from the media and the public, who are not allowed to bring in their own video equipment because of privacy concerns. Christensen said ICE has worked to be as transparent as possible while also safeguarding the privacy of the adults and children in our custody.
“To that end, the agency has used its own videographers to shoot footage of its family residential centers to provide to requesting reporters,” she said in a statement.
An explosive case in California
Critics have not been swayed.
In December, the American Civil Liberties Union sued the administration on behalf of asylum-seeking mothers who were detained even after they had been found by a U.S. immigration officer or judge to have a “credible fear” of persecution back home. The mothers won a February injunction and more families were released on bond, but the government continues to hold children and their parents who had previously been caught trying to enter the country illegally.
In South Texas, three immigrant mothers held at the Karnes City family detention facility filed a class-action suit against Immigration and Customs Enforcement officials and the private operator of the facility alleging they were held in isolation in retaliation for their hunger strike to protest their detention and conditions at the center.
Last week, attorneys for the Justice Department argued in court documents that the suit should be dismissed because the women lack a valid First Amendment claim.
“As non-resident aliens who have not gained admission or entry to the United States – and who have not established connections to the United States – plaintiffs are not entitled to prevail in a lawsuit seeking relief for alleged violations of the First Amendment,” Justice Department attorneys said in a May 7 filing.
But neither of those cases is as potentially explosive as the case in California, where lawyers for the government pressed, but apparently failed, to convince the judge to modify the 1997 agreement that required migrant children be released to family or held in the least restrictive environment.
Despite the government’s pleas, Judge Gee told federal lawyers she would not alter the 1997 settlement. But she said she would allow the two sides 30 days to negotiate a revised agreement that addresses the violations the court found.
In this case at least, it appears the mothers’ lawyers may have reason to be confident.
Or, as Judge Gee characterized the government’s concerns after issuing her draft ruling:
“Mr. Fresco is simply saying that he thinks all hell will break loose if I issue my order and cause this whole system of residential centers to collapse of its own weight.”