UNITED STATES: Judge orders release of immigrant children detained

[25 July 2015] - A federal judge in California has ruled that the Obama administration’s detention of children and their mothers who were caught crossing the border illegally is a serious violation of a longstanding court settlement, and that the families should be released as quickly as possible.

In a decision late Friday roundly rejecting the administration’s arguments for holding the families, Judge Dolly M Gee of the Federal District Court for the Central District of California found that two detention centres in Texas that the administration opened last summer fail to meet minimum legal requirements of the 1997 settlement for facilities housing children.

Judge Gee also found that migrant children had been held in “widespread deplorable conditions” in Border Patrol stations after they were first caught, and she said the authorities had “wholly failed” to provide the “safe and sanitary” conditions required for children even in temporary cells.

The opinion was a significant legal blow to detention policies ordered by Homeland Security Secretary Jeh Johnson in response to an influx of children and parents, mostly from Central America, across the border in South Texas last summer. In her 25-page ruling, Judge Gee gave a withering critique of the administration’s positions, declaring them “unpersuasive” and “dubious” and saying officials had ignored “unambiguous” terms of the settlement.

The administration has struggled with a series of setbacks in the federal courts for its immigration policies, including decisions that halted President Obama’s programmes to give protection from deportation and work permits to millions of undocumented immigrants.

“We are disappointed with the court’s decision and are reviewing it in consultation with the Department of Justice,” said Marsha Catron, a spokeswoman for the Department of Homeland Security. She said officials would respond to an order by the judge to present a plan by 3 August for carrying out the ruling.

Judge Gee’s decision was based on the 18-year-old settlement in a hard-fought class action lawsuit, known as Flores, that has governed the treatment of minors apprehended at the border who are unaccompanied — not with a parent. Judge Gee found that the Flores settlement, which has been carried out with little dispute from the federal authorities, also applies to children caught with their parents.

The judge also found that the family detention centres in Texas were a “material breach” of provisions requiring that minors be placed in facilities that are not secured like prisons and are licensed to take care of children. The detention centres are secure facilities run by private prison contractors.

She ruled on a lawsuit that was filed in February by Peter Schey and Carlos Holguin, lawyers at the Center for Human Rights and Constitutional Law in Los Angeles. They sued after two months of negotiations between them and the Justice Department produced no accord on how to change the detention centres.

“I think this spells the beginning of the end for the Obama administration’s immigrant family detention policy,” Mr. Schey, the president of the human rights centre, said Friday. “A policy that just targets mothers with children is not rational and it’s inhumane.”

The detention of the mothers and children has drawn furious criticism from immigrant advocates and religious and Latino groups, who have called on the administration to shut the detention centres down.

Since last summer’s surge, Homeland Security officials opened detention centres in Texas in Dilley and Karnes City, in addition to a small family centre already operating in Berks County, Pa. As of June 30, about 2,600 women and children were held in the three centres, officials said.

Initially, Homeland Security officials said they were detaining the families to send a message to others in Central America to deter them from coming to the United States illegally. In February, a federal court in Washington, DC, ruled that strategy unconstitutional. Officials stopped invoking deterrence as a factor in deciding whether to release mothers and children as they seek asylum in the United States.

But many women and children remained stalled behind bleak walls and fences month after month with no end in sight. Mothers became severely depressed or anxious, and their distress echoed in their children, who became worried and sickly.

Under the Flores settlement, officials were required to try first to release a child to a parent, legal guardian or close relative. Judge Gee concluded that if the mother was also detained, Homeland Security officials should release her with the child, as long as she did not present a flight or security risk. She gave the administration one week to devise a plan to release children and mothers “without unnecessary delay.”

For children who could not be released, the Flores agreement required officials to place them in nonsecure facilities run by agencies licensed for child care.

On June 24, Mr. Johnson announced changes to shorten the length of stay for most women and children in the centres. The pace of releases picked up, and more than 150 women and children were freed in one week alone in early July. Officials argued in recent court filings that Judge Gee was ruling on practices no longer in place.

Advocates disagreed.

“This decision confirms that the mass detention of refugee children and their mothers violates US law,” said Elora Mukherjee, a law professor at Columbia University who with her students has represented women at the Texas detention centres. “Prolonging their detention even a single day in light of this decision would be illegal.”


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