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Family separation is back for migrants at the U.S./Mexican border, say advocates

NBC News obtained a copy of a form ICE is allegedly distributing in family detention centers that lets parents apply for minor children to be released.
Image: Protest family separation
A protester holds a placard during the "Families Belong Together" rally at Daley Plaza in Chicago on June 30, 2018.Wang Ping / Xinhua via Getty Images file

WASHINGTON — Several immigrant rights organizations are outraged by a new choice U.S. Immigration and Customs Enforcement is presenting to migrant parents: Separate from your child or stay together in detention indefinitely.

Starting on Thursday, the groups claim, ICE began distributing a form in all three of its family detention centers that would allow parents to apply for their minor children to be released. The form, a copy of which was obtained by NBC News, states that it is in compliance with the Flores court agreement, which prohibits ICE from holding minors for more than 20 days.

The released children are placed with family members, sponsors or placed in the custody of the Department of Health and Human Services.

The Trump administration faced intense criticism for a Zero Tolerance policy in 2018 in which undocumented migrant children were separated from parents who had illegally crossed the order. The policy was implemented in May 2018 but reversed after an outcry in June.

Click here to see the form.

The current, "voluntary" concept was previously termed "binary choice," but has never been fully implemented. Now, lawyers representing clients in ICE family detention say parents may be persuaded to separate from their children if they are worried about exposing them to COVID-19 in detention.

The timing is no coincidence, said Shayln Fluharty, director of the Dilley Pro Bono Project, which provides legal services for families in detention in Dilley, Texas. A federal judge recently told ICE it was not in compliance with the Flores agreement, and the forms, said Fluharty, are a way for ICE to show that these parents have chosen to keep their children in detention.

Fluharty said she expected the government to release children to show the judge it was in compliance, not to ask parents to waive their rights to have their children released.

In a statement, a spokesperson for ICE said ICE "is exploring all options in response to Judge Gee’s most recent order which stipulates that ICE safely release children in its custody, who don’t pose a public safety or flight risk, to sponsors within the U.S. ICE continues to work to implement the requirements of the order, and has not implemented what has been referred to as 'binary choice' at this time."

ICE detention centers, which hold immigrants in large open-floor cells with many detainees sharing the same toilet, sink and living area, are becoming a hotbed for COVID-19 infections. The New York Times reported 85 cases in ICE detention in New York and New Jersey. ICE confirmed the first COVID019death of a migrant in its custody on May 7. The migrant was at the single adult detention facility in Otay Mesa, California.

Families Together, a group that advocates for the reunification of separated migrant families, Tweeted on Thursday night: "@ICEGOV gave families a choice today — we'll let your children go if you give them up. But not you. In the middle of a pandemic. This is horrific."

RAICES of Texas, which offers legal services to refugees and immigrants, Tweeted on Thursday, "ICE is asking parents to sign a form that would permit their children to be separated from them and released from detention, while forcing the parents to remain detained."