In an apparent setback for advocates fighting to end family detention, a federal court has lifted a ban that blocked the government from detaining mothers and children as a means to discourage future migration.
The decision by Judge James E. Boasberg of the U.S. District Court for the District of Columbia opens the door for the government to revive a controversial piece of the Obama administration’s strategy to combat illegal immigration across the southern border.
Boasberg lifted the injunction late Friday following an agreement by lawyers on both sides that the litigation may no longer be necessary. U.S. Immigration and Customs Enforcement announced in May that it would “discontinue invoking general deterrence as a factor in custody determinations in all cases involving families.”
Lawyers for the mothers disagreed that lifting the injunction was a setback since the government agreed it will not be using deterrence as a basis for detaining families. The judge warned the government that he could reinstate the injunction should officials again adopt the controversial practice.
In the wake of last year’s surge of tens of thousands of migrant families rushing the border from Central America, Department of Homeland Security expanded its practice of detaining mothers and children. At the time, federal officials said a message needed to be sent to Central Americans that those who cross the border illegally will be captured, held and returned.
A class-action lawsuit was filed by the American Civil Liberties Union and the immigration clinic at the University of Texas law school on behalf of the mothers. In February, Boasberg ruled the government could not detain migrants solely “for the purpose of deterring future immigration.”
The ruling didn’t end family detention. Mothers and children continue to be locked up. More than 2,500 parents and children are being detained in family detention centers in Karnes City and Dilley, Texas, and Berks County, Pa.
But the ruling stopped the government’s blanket detention policy and forced officials to look at individual cases when considering detention.
Denise Gilman, a University of Texas law professor who helped bring the lawsuit, called the litigation a success because it forced the government to end the policy of detaining these families as they await asylum hearings.
She acknowledged the government could try to bring the policy back, but noted the judge’s order includes protections that require the government to alert the court if they consider adopting the policy again.
“The judge made it very clear that he would basically reinstate the injunction if that happens,” Gilman said. “I think it’s a success. For this piece we won and we got agreement on both sides.”
The court also ordered federal officials to file a notice with the court 10 days before any policy changes if it considers adopting the deterrence policy again. The mothers’ lawyers can also request that the injunction be reinstated if they find that the government is detaining mothers and children to dissuade future migration.