A federal appeals court has reversed part of a lower court ruling against the Obama administration’s family detention policy that could give the government more leeway to detain mothers and their children.
The 9th Circuit U.S. Court of Appeals upheld large portions of a critical July 2015 ruling that led to the release of hundreds of detained mothers and children.
The three-judge panel ruled, for example, that U.S. District Judge Dolly Gee in Los Angeles correctly applied a nearly two-decade-old agreement on the detention of children by ruling that it also protected migrant children who were traveling with their parents.
The fact that the settlement grants class members a right to preferential release to a parent over others does not mean that the government must also make a parent available.
Judges Andrew D. Hurwitz
But Judges Andrew D. Hurwitz, Ronald M. Gould, Michael J. Melloy said Gee went too far when she required that a parent be released as well to take care of the children. The government is not required to release the parent along with the child, Hurwitz wrote in the court’s opinion.
So while the panel upheld Gee’s ruling that migrant children must be released quickly from family detention centers, their parents can continue to be held.
The ruling raises questions about whether the government will separate families in order to keep detained mothers in custody.
“The fact that the settlement grants class members a right to preferential release to a parent over others does not mean that the government must also make a parent available; it simply means that, if available, a parent is the first choice,” Hurwitz wrote.
The Obama administration revived the practice of family detention after nearly 70,000 families rushed the southern border in 2014 fleeing poverty and violence in Central America.
The administration responded by opening four family detention centers. It currently operates three, in Karnes City and Dilley, Texas, and Berks County, Pennsylvania.
The facilities have been the subject of intense public and media scrutiny by Congress and media outlets. McClatchy has reported on allegations of poor conditions and mistreatment. But U.S. Immigration and Customs Enforcement officials say the detainees are well cared for.
The government argued in court that it needs every tool available to uphold the government’s constitutional authority to detain apprehended migrant families at the border, including through the use of family residential centers.