Responding to a new surge of unaccompanied children and migrant families from Central America, the Obama administration has stepped up its efforts to save its federal family detention program.
Justice Department lawyers filed a motion with the California-based 9th U.S. Circuit Court of Appeals late Tuesday to expedite its appeal of a district judge’s decision this summer that found the Obama administration had violated an 18-year-old court settlement regarding the detention of migrant children.
If the expedited motion is granted, the family detention cases could be back in front of a three-judge panel by next month, with oral arguments beginning in March or April. Under the current schedule, oral arguments may not begin until 2017.
Lawyers for detained mothers, who filed the original case, are expected to oppose the request for a speedier schedule.
It is especially concerning that the numbers of family units apprehened by Border Patrol are increasing.
Woody Lee, U.S. Border Patrol
In its request, the government said it needs every tool at its disposal, including family detention, to address the surge. But advocates say the motion’s assertion that migration numbers rose following the court’s original decision suggests that family detention was needed to discourage future migration. That deterrence argument was behind the federal lawsuit filed last year that resulted in a temporary court injunction that limited the administration’s detention policy.
“Those arguments sound a lot like the deterrence arguments that have already been rejected by a district court as illegal,” said Judy Rabinovitz, the deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project.
In her ruling last summer, U.S. District Judge Dolly Gee didn’t force the government to close the three family detention facilities it operates, as many advocates had hoped. But she did limit the amount of time families can be held to about 20 days under certain circumstances, such as last year’s surge.
The administration currently holds 1,538 parents and children in three family detention centers in Karnes City and Dilley, Texas, and in Berks County, Pennsylvania.
In its request for expedited consideration, the government said it needs greater flexibility to respond to unpredictable waves of migrants.
This is a problem of the government’s own making.
Judy Rabinovitz, deputy director of the ACLU’s Immigrants’ Rights Project
Woody Lee, chief of the U.S. Border Patrol’s Strategic Planning and Analysis Directorate, said in an affidavit that the number of families detained began to rise in July and has continued rising at a substantial rate through the fall. On Nov. 21, more than 344 migrants traveling with a parent or a child were apprehended – the highest single-day total since July 2014.
The government said that historically, migration numbers drop at the end of summer as temperatures rise and desert travel becomes more dangerous.
Deputy Assistant Attorney General Leon Fresco wrote in the government’s motion that Gee’s ruling severely constrains federal officials’ ability to respond to the new surge.
“If historical patterns continue, these numbers will only increase in the spring,” Fresco wrote.
344 Number of migrants who were traveling as a families who were apprehended on Nov. 21, the single highest day since the peak of last year’s surge.
A three-judge panel will consider the government’s motion for an expedited hearing. The San Francisco-headquartered court is considered one of the country’s most liberal appeals courts. All three judges hearing the motion were appointed by Republican presidents, either Ronald Reagan or George W. Bush.
Advocates fighting family detention criticized the decision to appeal.
Rabinovitz said the government’s problem is one of its own making. She said the number of border crossers is still low historically.
“Rather than locking up Central American families and putting them through a credible-fear screening process,” she said, “the government should simply return to its prior practice of placing families in regular removal proceedings and releasing them under conditions of supervision.”