By JULIA PRESTON, N.Y. Times ~ August 22, 2015
A federal judge in California has given the Obama administration two months to change its detention practices to ensure the rapid release of children and their parents caught crossing the border illegally.
In a harshly critical opinion last month, the judge, Dolly M. Gee of Federal District Court for the Central District of California, found that the administration had violated the terms of a 1997 court-ordered settlement governing the treatment of unaccompanied children — minors who tried to enter illegally without a parent. The judge determined that the settlement, in a case known as Flores, covered all children in immigration detention, including those held with a parent.
After considering final arguments from both sides, Judge Gee issued an order late Friday to put her ruling into effect. She ordered the administration to release children “without unnecessary delay” to a parent or other relative in the United States and, in a significant new mandate, to release the parent as well unless that person posed a flight risk or a threat to national security. The settlement requires the release of children from secure detention within five days.
Judge Gee also prohibited the administration from holding children in secure facilities that are not licensed to care for minors. She ordered theBorder Patrol to upgrade the “deplorable” conditions in its front-line stations to ensure a “safe and sanitary” environment for children. She said the new measures must be in place by Oct. 23.
The judge’s order is the most serious legal setback to a vast expansion of detention of migrant families the Department of Homeland Security began last year after an influx of illegal border crossers in South Texas. Officials opened two large secure family detention centers in Texas, in addition to an existing one in Berks County, Pa. Although the two Texas centers offer fully staffed medical clinics, schools, gyms and other amenities, they are run by private prison contractors, not by agencies with state licenses to care for children, as the Flores agreement requires.
The administration is also facing a barrage of criticism from immigrant advocates and lawyers over the detention of children. A report this past week by Human Rights First, a national rights organization, found that children at the Berks County center showed “symptoms of depression, behavioral regression and anxiety” and “increased aggression toward both parents and other children,” even after only a few weeks behind walls. Their parents also “appear to be suffering from depression, including feelings of helplessness with regard to the care and health of their children.”
In another recent report, the American Bar Association reminded Homeland Security officials that detention of migrant families “has been rejected previously by both courts and policy makers,” and concluded that it “impinges on the families’ due process right to access to counsel.”
The association recommended that the families be immediately released. More than 150 federal Democratic lawmakers signed a letter calling on Homeland Security Secretary Jeh Johnson to comply with the Flores settlement.
The administration had asked the judge to reconsider her ruling, arguing that recent policy changes greatly reduced detention times for most mothers and children. Officials said their goal was to hold the families for an average of only 20 days, just enough time to identify them, give them medical checks and determine whether they had valid asylum claims to pursue. Most of the families are fleeing predatory gangs or other violent abuse in three Central American countries: El Salvador, Guatemala and Honduras.
Judge Gee broadly scorned the administration’s arguments in Friday’s order, saying they had “utterly failed” to persuade her to reconsider. She said officials’ warnings that the swift release of families could spur another influx of Central American minors were “speculative at best and, at worse, fear mongering.”
“I just think Secretary Johnson just has a blind eye when it comes to mothers and children,” said Peter Schey, president of the Center for Human Rights and Constitutional Law in Los Angeles, which brought the lawsuit in the case.
Stephen Manning, a lawyer from Portland, Ore., who has represented many migrant women and children in the centers, said family detention was based on errors.
“It was factually incorrect to prejudge and assume that the children and mothers were not bona fide asylum seekers,” he said. “It was medically incorrect to assume that prolonged detention of children and mothers would not cause any harm. And as Judge Gee makes pointedly clear, it was legally incorrect, from the very beginning.”
But Judge Gee appeared to leave the administration some room to continue to hold families for at least a little longer than five days. If the administration can show there is a new influx, she said, holding women and children for up to 20 days “may fall within the parameters” of the Flores settlement.
