Advocates Say ICE Is Needlessly Holding Kids Amid Pandemic
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Law360 (June 26, 2020, 8:01 PM EDT) — Immigration advocacy groups have ripped into U.S. Immigration and Customs Enforcementfor providing a “cursory and vague” report on the conditions of migrant children in custody, saying the agency failed to justify the minors’ continued detention during the coronavirus pandemic.
In an amicus brief filed Thursday, a trio of immigration groups urged a California federal judge to enforce the Flores agreement — a decades-old settlement that set bedrock standards of care for migrant kids in government custody — and order ICE to speed up efforts to release migrant children detained in the public and privately-operated family detention centers in Pennsylvania and Texas.
The groups were spurred by a June 10 ICE report that they claimed was “internally inconsistent, factually inaccurate and incomplete in material ways,” and revealed that ICE has strayed from a court order that it take “prompt and continuous efforts” to release migrant children from detention.
The brief was filed in the long-running Flores class action, which was brought on behalf of detained migrant children. U.S. District Judge Dolly Gee ruled in March that unjustified delaysin releasing migrant children violated the terms of the Flores agreement. She followed up that order in April with instructions that ICE take and document “prompt and continuous efforts” to free the minors.
But the report revealed that ICE reviewed the detainees in custody only twice since March. “Two custody (re)determinations, when class members at the three [centers] have been detained for upwards of 100 days, cannot be considered ‘prompt and continuous,'” the organizations responded.
The report was further beset with inconsistencies, the organizations claimed. Shalyn Fluharty of Proyecto Dilley, one of the amici, explained to Law360 on Friday that across the report, ICE marked minors’ time in government custody from different benchmarks and sometimes misrecorded the status of their immigration cases.
“Children should typically be released within 20 days — you can’t assess that without knowing the status of the proceeding and how long that is taking,” Fluharty explained.
The groups further claimed that the report was factually incorrect. ICE reported that families failed to hand over information on individuals able to receive the migrant children on parole. But the groups pointed out that they have repeatedly provided ICE with the names, phone numbers and addresses of individuals able to take care of migrant children.
“Sponsorship has never really been an issue, and the fact that sponsorship information was missing from the report was a very big mischaracterization,” said Andrea Meza of RAICES, another one of the advocacy organizations.
In another alleged error, ICE said that certain children were participating in separate federal litigation that they were not actually involved in. The mistakes were costly, the organizations said, as the report showed that detainees pursuing litigation were refused parole.
The report further obscured the danger the children faced due to the coronavirus pandemic, the advocates said. Though the number of detainees held at the detention centers has been reducedto allow for social distancing, the organizations pointed out that parts of the facilities are largely restricted to migrants. Additionally, efforts to provide migrants with masks don’t account for young minors’ inability to legally wear them, the organizations said.
But for the advocacy groups, the report “critically” revealed that ICE had failed to give valid reasons to keep migrant children in detention. In some cases, ICE rejected a parole request because the applicant was appealing final removal orders; in others, because the migrants were involved in separate lawsuits.
The rejections referenced information that Judge Gee instructed ICE to ignore, Meza said, explaining, “ICE has released people in these exact same situations, even in the pandemic.”
In light of the errors and inconsistencies, Fluharty said that one thing was clear: “The government is not making and recording efforts to release children from custody.”
An ICE spokesperson said that the agency doesn’t comment on pending litigation.
The amici are represented by Gabriel S. Barenfeld and Gretchen M. Nelson of Nelson & Fraenkel LLP, Andrea Meza of RAICES, Shalyn Fluharty of Proyecto Dilley and Bridget Cambria of ALDEA – The People’s Justice Center.
The Flores class is represented by Carlos Holguin and Peter A. Schey of the Center for Human Rights & Constitutional Law, Holly S. Cooper of the University of California, Davis Schoolof Law, Bill Ong Hing with the University of San Francisco School of Law Immigration Clinic, Stephen Rosenbaum of La Raza Centro Legal Inc., Jennifer Kelleher Cloyd, Katherine H. Manning and Annette Kirkham of the Law Foundation of Silicon Valley, and Bridget Cambria of Aldea-The People’s Justice Center.
The government is represented in the Flores case by Nicole N. Murley and Sarah B. Fabian of the DOJ‘s Civil Division. The government is represented in the other case by Mariam Kaloustian also of the DOJ’s Civil Division.
The case is Flores et al v. Barr et al, case number 2:85-cv-04544, in the U.S. District Court for the Central District of California.
–Additional reporting by Dorothy Atkins and Craig Clough. Editing by Steven Edelstone.
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