In a scathing rebuke of the Obama administration’s family detention program, a California judge dismisses federal officials’ “rosy account of the conditions” at the federal centers and say children, even with their mothers, should not, for example, be held in a concrete-block facility built to house adult prisoners.
Those are among the details of a critical opinion by U.S. District Judge Dolly Gee – that the family detention centers are illegal – and that has remained in the dark and unofficial. Gee’s tentative ruling has not been seen publicly until now. It remains under a written gag order but was released to McClatchy by one of the lawyers related to the case.
That lawyer, Bryan Johnson of New York, was terminated from his advisory role in the case shortly after the ruling was published by McClatchy. Johnson agreed to be named as the source of the tentative ruling.
The ruling will remain unofficial while high-level negotiations continue on the fate of hundreds of mothers locked up in three family detention centers. But without a deal between the government and migrant advocates, lawyers for many other mothers can’t use that opinion to help get their clients freed on bail.
One deadline has already been missed and another critical deadline has some attorneys accusing the government of dragging out talks to brazenly disregard an 18-year-old federal agreement banning the detention of migrant children.
Frustrations reached a higher level this week after U.S. Immigration and Customs Enforcement abruptly deported a teenage mother and her 4-year-old son days after she attempted suicide in the bathroom of a south Texas detention center.
Johnson, an immigration attorney who was retained by negotiators for the mothers, described the treatment of Lilian Oliva Bardales, 19, as “torture.” Johnson represented Oliva after she cut herself. He said she would not have been treated as she was – being separated from her son and held in isolation in a medical unit – had the government followed California U.S. District Judge Dolly Gee’s ruling.
“It’s like ‘You know we’re negotiating,’” Johnson said. “‘We can continue to violate the law while we’re negotiating, right?’ And that is what’s happening. And it’s crazy that no one is holding them to account.”
Last year, the Obama administration revived the controversial practice of detaining mothers and children in response to the tens of thousands of families who flooded the U.S. border fleeing violence and poverty in Central America. In less than 12 months, the government went from one lightly used family detention center with fewer than 100 beds to three facilities that can hold more than 3,000 mothers and children.
Lawyers for the women sued. In April, Gee distributed a confidential 23-page tentative ruling in which she blasted the government for launching such an elaborate program – costing the government as much as $342 a day per family – without properly addressing the complicated area of immigration law.
“It is astonishing that defendants have enacted a policy requiring such expensive infrastructure without more evidence to support that it would be compliant with the agreement that has been in effect for nearly 20 years or effective at achieving what defendants hoped it would accomplish,” she wrote in her tentative agreement.
Johnson said he released Gee’s ruling “to empower children and mothers currently detained to exercise their rights” under the settlement.
He and other concerned lawyers said they should be able to use Gee’s tentative ruling when defending their clients.
The outcome of a final settlement or a court decision could have sweeping implications. It could force the Department of Homeland Security to release migrant women and children into the community. The children could be released, but the mothers remain detained. Or, it could lead to an entirely new system that ensures families show up for their court cases.
Judge Gee also wasn’t persuaded by the government’s tactic to use detention as a deterrence strategy. Federal officials contend that the release of detained mothers and children would give families in Central America a strong incentive to undertake the dangerous journey to the United States.
The government cited reductions in apprehensions after the policy was implemented. But Gee questioned whether the decline could really be attributable to the policy given that “such apprehensions were already on the decline prior to the implementation of the policy.”
Gee did not officially issue her tentative ruling, on the request of the government, which warned of the problems it would create. Leon Fresco, a deputy assistant attorney general, warned the court that the ruling would force the government to split mothers and 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, according to a transcript obtained by McClatchy.
The mothers’ lawyers could simply wait for Judge Gee’s order, which is expected to be in their favor. But for them, there are advantages to a negotiated settlement. The mothers could be released sooner and avoid a potentially lengthy appeals process.
But there is also the risk that the judge may not rule as strongly as she did in her tentative ruling.
The government seems to be banking on that possibility. Officials have raised concerns with the judge that her decision prevents them the needed flexibility to respond to future emergency migrant surges of this kind.
U.S. Immigration and Customs Enforcement officials said Thursday they would not discuss pending litigation.
However, the agency describes the family residential centers as an “effective and humane alternative” to keep families together as they go through immigration proceedings or await return to their home countries.
Gillian Christensen, an ICE spokeswoman, has said that Homeland Security Secretary Jeh Johnson has made it clear that those arriving at the border, including families, are a priority for removal “and that ICE should allocate the resources to address these arriving aliens.”
After attempting suicide at the Karnes Family Residential Center, Oliva, the young mother, was held for four days under medical observation without being taken to a hospital or allowed to meet with an attorney, according to her lawyer.
She left behind a suicide note in which she blamed officials holding her with treating her “worse than an animal.”
“I write this letter so you know how it feels to be in this damn place for eight months,” Oliva wrote in Spanish.
A photo of Oliva’s wrist obtained by McClatchy shows the scars that ICE describes as “minor.” Her lawyers say the government used her injury as the basis for preventing them from meeting with Oliva.
ICE officials said Oliva exhausted her legal options and was allowed to speak with her lawyer by phone before she was deported less than a week later. Christensen said on-site medical professionals confirmed that the injury was minor and in no way life-threatening.
Jonathan Ryan, executive director of the Texas-based Refugee and Immigrant Center for Education and Legal Services, which provides legal services to many of the mothers in Texas detention centers, said he hasn’t seen Gee’s tentative ruling.
But he said not having it puts him and others fighting ICE at a disadvantage when arguing on behalf of their clients, such as Oliva.
He, like Johnson, said Oliva would not have been treated the way she was had the ruling been followed.
Ryan joined a group of grass-roots organizations and service providers that wants to make sure Judge Gee hears their voices as well as those of the official negotiators.
On Thursday, they called on the federal government to release all children and their mothers from government detention within 48 hours.