A federal court looks to be on the verge of delivering a significant blow to the Obama administration policy of detaining mothers and children who say they’re fleeing violence in their home countries, according to attorneys representing the detained families.
U.S. District Judge Dolly Gee in California distributed a 22-page tentative ruling Friday concluding the administration policy violates parts of an 18-year-old court settlement regarding the detention of migrant children, according to memos that outline the tentative ruling and were obtained by McClatchy.
The tentative ruling was distributed to attorneys but not officially filed, to allow the two sides 30 days to negotiate an agreement. But it states the children and their mothers cannot be held in unlicensed secure facilities such as those in the towns of Karnes City and Dilley, Texas, according to the memos.
The tentative ruling also says it’s inappropriate to hold a child and accompanying parent unless there is a flight or safety risk, according to the memos describing the document.
The correspondence about the tentative ruling was circulated among a group of lawyers and advocates representing the women and children before being shared with McClatchy. If the migrants’ lawyers and federal attorneys cannot reach agreement within 30 days, Gee could issue a final ruling on the matter.
The tentative court decision could have sweeping implications, forcing U.S. Immigration and Customs Enforcement to make some difficult choices: release undocumented women and children into the community; release the children but detain the mothers; or completely overhaul the way the agency shelters the migrants until their cases are heard by immigration courts.
“It’s the beginning of the end of family detention as we know it,” said Bryan Johnson, a New York-based immigration attorney who is familiar with the case but did not share the memos.
Once an almost abandoned practice, family detention has surged over the past year as the Department of Homeland Security has significantly increased its capacity to house women and children. Since July, more than 2,500 immigrants, mostly women and children, have been detained at four family detention centers. There are currently three family detention centers, in Texas and Pennsylvania.
The growing use of family detention centers is a direct response to last year’s wave of migrants from Central America who rushed to the United States fleeing violence and poverty. While most of the initial attention was on the roughly 50,000 unaccompanied minors, even more – 52,000 – so-called “family units” were apprehended as they sought safety in the United States.
Immigration and Customs Enforcement spokeswoman Gillian Christensen said the agency could not discuss pending litigation. ICE has contended that family residential centers are an effective and humane alternative by keeping families together as they awaited their immigration hearings or are deported.
There have been complaints by the migrants of poor conditions and isolation at the centers, and the Department of Homeland Security’s civil rights office has investigated allegations made by mothers at the Karnes facility.
In the past year, immigration lawyers working with the migrants determined that the facilities were violating a 1997 settlement in a case called Flores v. Meese. So they returned to the California court where that case was heard.
The 1997 settlement called for minors to be placed in the custody of family or a legal guardian when available. If a child is held, he or she must be housed in the least restrictive environment possible.
After Judge Gee issued her tentative ruling last week, one of the immigration attorneys, Carlos Holguín of the Center for Human Rights and Constitutional Law, wrote a memo to his peers with a point-by-point detail of the judge’s decision.
Holguín wrote that Gee appeared to agree in her preliminary ruling with the plaintiff lawyers’ contention that the settlement applies to all minors in immigration custody, whether they’re accompanied or not.
“The court found it ‘astonishing’ that immigration authorities had adopted a policy requiring such an expensive infrastructure without more evidence to support a belief that doing so would achieve the desired ends,” Holguín wrote. Holguín did not respond to calls and email seeking comment.
According to the correspondence, the migrants’ attorneys appear confident enough with the court’s position that they already have begun scheduling meetings with stakeholders to discuss under what parameters they would accept an out-of-court resolution for winding down the family detention program.
In February, Joyce R. Branda, then an acting assistant attorney general in the Justice Department’s civil division, asked the court to modify the 1997 agreement – arguing that the circumstances, including the surge of tens of thousands of migrants, have changed so greatly that the government couldn’t comply with the settlement and also protect public safety.
“It has become clear that it is impossible to mandate full and strict compliance with all terms of the nearly two-decades-old agreement while expecting DHS to fulfill its core function of protecting the public safety and enforcing U.S. immigration laws,” Branda wrote in the government’s motion to modify the settlement.
On Tuesday, Ranjana Natarajan, one of the plaintiff attorneys and director of the Civil Rights Clinic at the University of Texas School of Law, said the judge agreed that the administration’s practice “violates both the language and spirit of the agreement” to hold children in locked facilities that are not licensed by the state to care for dependent children.
“This is very important because it signals that the recent DHS practices in the last year of putting children and mothers in family detention facilities even when they didn’t pose any significant flight risk or danger – it’s indicating that that policy is not a sound policy because it doesn’t comply with Flores,” she said in an interview.