Despite judge's order, migrant children remain detained amid COVID outbreak

"It’s preposterous," said a former ICE official who served during both the Obama and Trump administrations. "There’s no reason other than cruelty."

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By Jacob Soboroff

LOS ANGELES — Nearly a month after a federal judge ruled the Trump administration must release migrant children "with all deliberate speed" from Immigration and Customs Enforcement detention centers because of COVID-19, 346 parents and children are detained in facilities with outbreaks and court filings show releases remain rare.

When U.S. District Judge Dolly Gee ordered the release of children detained with their parents in late June, she was explicit in her reasoning. The ICE facilities, she said, were "‘on fire’ and there is no more time for half measures."

ICE, which has historically released families and children together, has refused to do so ahead of the July 27 deadline set by the judge, stoking outrage among lawyers and some who have worked inside the system itself.

"It’s preposterous," said a former ICE official who served during both the Obama and Trump administrations. "There’s no reason other than cruelty."

ICE declined to respond to the former ICE official's comment "due to pending litigation," said spokeswoman Jenny Burke.

The continued detention of families has angered lawyers from two of the three legal service providers representing them, and caused a rift between advocates for the migrants. The immigration lawyers for the families are fighting on two fronts, against the Trump administration and the legal position of Peter Schey, who represents the same children they do. They allege the best interests of those children are not being "adequately represented" by Schey, who is the lead attorney for the migrants in the case.

On Tuesday, RAICES and Aldea–The People’s Justice Center, filed a motion to intervene in the case. They say the government and Schey should not be negotiating a waiver deal that would let parents choose between remaining detained with children or releasing the children separately, and that ICE should instead release parents and children together and implement strict COVID-19 safety measures in its facilities.

In a letter to Schey that was submitted to the court, the other lawyers said his efforts are "at odds with the stated interests, health, and well-being of our clients."

On Wednesday, the Trump administration filed a response to the motion to intervene, saying "[t]he government opposed the family separation process now requested by the Plaintiffs and ordered by this Court."

Laura Munoz and Paula Munoz join protesters outside the Immigration and Customs Enforcement's Broward Transitional Center in Pompano Beach, Fla. on May 1, 2020.Joe Raedle / Getty Images file

"I think that’s laughable because what we know is that for new intakes in at least one of the facilities they’re asking people to separate at intake," said Amy Maldonado, attorney who represents detained families in other federal litigation, referring to ICE’s Karnes County Residential Center in Texas. "Obviously the government's policy has been about separations. They never stopped separating children from their parents."

Since 2017, the Trump administration has separated more than 5,000 children from their parents.

The developments are the latest dramatic turns in the Flores settlement agreement, which since 1997 has regulated the detention of migrant children in government custody. In 2015, amid a court challenge to the agreement by the Obama administration, Judge Gee ruled detained children must be released after 20 days. Trump administration officials described the agreement as a "loophole" that allows for the "catch and release" of migrant families coming to the United States.

The original deadline to release the children was July 17, but after a joint motion by Schey and the Trump administration, Judge Gee extended it to Monday.

Schey is a controversial figure in the immigrant rights community, having represented the children covered by the Flores agreement for decades, and his work on the waiver deal has exposed deep rifts within the movement, first reported by Tina Vasquez of Prism, leading to allegations he is in favor of binary choice, also referred to as "family separation 2.0."

In an interview with NBC News, Schey defended his negotiations with the government over the waiver, and the decision it could force parents to make between family separation and indefinite detention.

“We believe that while the Flores settlement only extends release rights to children, that means parents face a difficult choice about what’s in their best interests for their children. We strongly believe parents have a right to be fully informed about their children’s rights and secondly that there is a procedure in place to honor the parents’ decision however difficult to make.”

Binary choice, as NBC News reported in April 2019, was developed as an alternative to the Trump administration’s systematic family separation policy that took more than 5,000 children away from their parents after it was ruled unconstitutional by U.S. District Judge Dana Sabraw in 2018.

In an August 2018 email produced as part of a Freedom of Information Act request by BuzzFeed News, as the policy was being dismantled, Gene Hamilton, a Justice Department official and Stephen Miller, the Trump senior advisor, e-mailed about binary choice.

"We got an order from Judge Sabraw allowing binary choice," Hamilton emailed to Miller.

"We should discuss," Miller replied.

In May, NBC News reported ICE presented detained families with a form that would allow them to release their children in lieu of remaining detained together, but not a single parent from the hundreds of families then detained in ICE custody agreed to be separated from their children when presented with the option.

"The families we represent do not want to be separated from each other. Family integrity is a human right," RAICES said in a statement. "The idea that all children would be better off in the United States without their parents is an indignity to the journey these families have taken together."

Adiel Kaplan contributed.