The Obama administration has conceded that it must curtail long-term detention of migrant mothers and children. But officials may have to go even further if government lawyers agree to a confidential proposal that would limit the detention of most parents and children to less than two weeks.
In many cases, the period would be less than 24 hours.
Still, some hard-line advocates say the proposal, prepared by lawyers for detained mothers, doesn’t go far enough, lacks clarity and legalizes what, they say, is currently illegal – the practice of locking up migrant children. They fear the mothers’ lawyers have forfeited too much in their opening position and that the proposal will likely be watered down in further negotiations.
The confidential proposal provided exclusively to McClatchy is at the center of secret negotiations in a high-stakes federal court battle over how and when mothers and children can be detained as their asylum cases make their way through the courts. That process can take years.
The case is all about how long children can be held in detention.
Justice Department lawyers are fighting to keep open three family detention centers in the face of a confidential tentative federal court ruling that concluded the practice violates parts of a 1997 settlement on migrant children. The detention centers house more than 2,500 parents and children.
Instead of filing her ruling, U.S. District Judge Dolly Gee of the Central District of California gave the two sides 30 days to work out a new agreement. Two months later, they’re still talking.
The proposal by the mothers’ lawyers, dated May 27, called for the quick release of hundreds of detained families and warns the government that failing to agree to its terms sends a bad message that Department of Homeland Security officials have illegally detained thousands of mothers and children “under pretty deplorable conditions.”
“Whether by stipulation or court order, this illegal detention is going to end,” attorney Peter A. Schey wrote to Justice Department officials in a letter that accompanied the mothers’ proposal.
Immigration and Customs Enforcement officials said the agency could not discuss ongoing litigation.
The mothers’ lawyers want to prevent the detention of mothers and children in almost all cases. The government didn’t agree to the terms, however, with Homeland Security Secretary Jeh Johnson and administration attorneys arguing that they need to use the family detention centers to respond to unexpected migration surges like last year’s wave of migrants from Central America. Officials cited Executive Office for Immigration Review statistics that showed 40 percent of migrants released last year did not show up for court dates.
Leon Fresco, a deputy assistant attorney general, warned the court in April that the government could release the children but is mandated to detain mothers who’ve been deported previously.
“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 two sides have been wrangling for weeks to find some middle ground as they’ve extended negotiations twice. The latest deadline is July 3.
McClatchy shared the mothers’ proposal with a handful of lawyers following the case. Their wide-ranging reactions illustrate a divide in the advocacy community over how to address an urgent humanitarian need without weakening existing protections from a 1997 agreement, known as Flores v Meese.
Stephen Yale-Loehr, an immigration professor at Cornell Law School, said that while the proposal would not end family detention, it would cut dramatically the amount of time most mothers and children could spend in a facility, from over a year to less than 12 days. Many would be released within 24 hours, he said.
“If this stipulation were to be agreed to by the federal government, it would be a huge win for the plaintiffs,” Yale-Loehr said.
The proposal also would require that detainees to be informed of their rights in their own language, that bonds be affordable and that the government be limited on who it can deem a flight risk so they can be detained longer.
New York immigration attorney Bryan Johnson sees problems with the proposal – especially since it was more of a starting point for contentious negotiations.
Johnson, who was a consultant in the Flores litigation until his termination for releasing the judge’s April 24 confidential ruling, said the proposal cedes too much power to the federal government, which is operating in clear violation of the judge’s ruling on Flores while negotiations have continued. The proposal, he said, would allow that to continue, and while the detention times might be shorter, the government could get around the proposals’ limitations by taking a harder line when considering if asylum applicants truly fear persecution in their home countries. Johnson also provided the most recent proposal.
“As long as these places remain open there is going to be mothers and children detained for long periods of time,” Johnson said Friday. “And they’re going to be harmed and they’re going to be deported wrongly.”
The Obama administration expanded its use of family detention following last year’s surge of nearly 70,000 parents and children who had fled Central America.
More than 4,500 people, mostly women and children, have been locked up in four family detention centers in Karnes City and Dilley, Texas, Berks County, Pa., and Artesia, N.M. The New Mexico facility has since closed.
The facilities have been the source of intense congressional and media scrutiny. Last week, McClatchy reported that a federal judge ordered U.S. officials to find and return a 34-year-old mother and her 12-year-old daughter who’d been deported to Guatemala.
A deported teen mom who cut her wrist at the Karnes facility told McClatchy about how she was taken from her young son, put into isolation and then hidden at a hotel before being deported to Honduras.
Secretary Johnson said Thursday he had come to the conclusion that the government must make substantial changes to its family detention policies and that “long-term detention is an inefficient use of our resources and should be discontinued.”
The mothers’ lawyers could simply wait for Judge Gee’s order, which is expected to be in their favor. But there are benefits to a negotiated settlement, said Jennifer Koh, a law professor and director of the immigration clinic at Western State College of Law in Fullerton, Calif.
For one, the government wouldn’t appeal a negotiated agreement, she said, while an appeal of an eventual order by Judge Gee could take at least a year, during which more mothers and children could be detained.
The proposed limitations on who the government could declare a flight risk also would help shorten detention times, she said.
The proposal is well intentioned, said Jonathan Ryan, executive director of the San Antonio-based Refugee and Immigrant Center for Education and Legal Services, perhaps the most aggressive grassroots organization fighting family detention.
But he said the language can be interpreted in multiple ways. And it doesn’t resolve the systematic problems he sees with detentions. Families can still be separated. And an enforcement agency shouldn’t be in charge of both the care of mothers and children while at the same time determining the merits of their claims to remain in the country.
“I only see in these 20-plus pages a potential pathway further into the woods and not into the clear light of day where children refugees, families, simply don’t belong in lockup of any type for any amount of time,” he said.