- The Washington Times - Friday, August 7, 2015

The country saw another surge of illegal immigrant families crossing the border in July, a top Homeland Security official told a federal court late Thursday as the administration begged a judge not to forbid detention of new migrant mothers and children.

Deputy Border Patrol Chief Ronald Vitiello said the number of illegal immigrant families captured at the border rose in July, bucking a trend and worrying officials who had been expecting the number of families to drop as the heat increases in late summer, just as the number of unaccompanied minors does.

Even worse, the administration fears things may get worse if illegal immigrants hear about Judge Dolly M. Gee’s July 24 ruling all but prohibiting detention of illegal immigrant families.

Indeed, the administration warned that Central American parents may actually be enticed to bring their children on the perilous journey north, realizing that they can use their kids as shields to get themselves released from detention. That, in turn, could mean more even children being forced to make the trip up.

“Specifically, the proposed remedies could heighten the risk of another urge in illegal migration across out Southwest border by Central American families, including by incentivizing adults to bring children with them on their dangerous journey as a means to avoid detention and gain access to the interior of the United States,” Deputy Assistant Attorney General Benjamin C. Mizer said in papers filed Thursday, just ahead of a midnight deadline.

The case is the latest test of Homeland Security, which finds itself tugged on one side by immigrant-rights advocates who protest most enforcement measures, and on the other side by congressional Republicans who demand stricter enforcement across the board.


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Judge Gee last month sided with the advocates, issuing a far-reaching ruling that the government is violating a two-decade-old agreement governing how to treat illegal immigrant children. Among the problems Judge Gee identified were the fact that children traveling with their parents were held more than five days in custody, and that the detention facilities they were held in were guarded and secure, and lighted 24 hours a day.

The judge gave the administration time to argue its case, but now Judge Gee must decide whether to impose her proposed solution, which could have the effect of essentially shutting down detention of illegal immigrant families by U.S. Immigration and Customs Enforcement (ICE).

Mr. Vitiello said if the ICE family detention centers are shut down, it will mean illegal immigrants languish longer at Border Patrol facilities, which aren’t set up for longer-term holding, and it would distract agents from their chief job of trying to catch new border crosses.

“This would greatly impact our operational capacity and our ability to secure the borders while facilitating lawful trade and travel,” the deputy chief said in an affidavit filed with the court.

The filing was one signal that President Obama intends to fight Judge Gee’s ruling.

Immigration-rights advocates are likely to be angered by the move. In the two weeks since her initial ruling, Democratic leaders in Congress had called on the administration to comply with Judge Gee’s proposal and end detention of families.

“This court ruling is a chance for the U.S. government to put a definitive end to its harmful and illegal family detention policy,” Clara Long, a researcher at Human Rights Watch, said after Judge Gee’s ruling.

Judge Gee found the conditions the families were kept in to be unacceptable, and in violation of the so-called Flores agreement, reached in 1997. She said having locked doors, lights on 24 hours a day, and temperature spikes were all conditions that broke that agreement.

The administration argues the Flores agreement applied only to unaccompanied minors, not to children traveling with parents. And officials said the facilities have to be secure, and the lights have to be kept on, partly for the detainees’ safety.

But advocates had urged the administration to use the judge’s ruling as a chance for a break from past practices.

On Friday, former Maryland Gov. Martin O’Malley, who had joined the call for the administration to halt family detention, tweeted a message expressing his disappointment that they were fighting the case instead of accepting the judge’s order.

“The US is a welcoming, compassionate country yet we insist on jailing vulnerable women and children. Why didn’t @DHSgov #EndFamilyDetention?” Mr. O’Malley said in his tweet.

Human Rights First, another group, visited one of the detention facilities last week, just days after Judge Gee’s ruling, and said they found conditions had worsened, with ICE officers setting bonds too high for families to be able to meet. Human Rights Watch also disputed the government’s assertion that most mothers and children are being quickly released.

Before 2014, most mothers and children from Central America were usually quickly turned out onto the streets, in a practice the administration admitted was “informally known as ‘catch and release.’ ” Those illegal immigrants often never showed up for their deportation hearings, instead absconding and blending in with the estimated 11 million illegal immigrants already here.

With last year’s surge, however, ICE began to use detention, hoping to deter illegal immigrants who were flight risks. Officials also hoped that once folks back home saw their neighbors getting deported, it might prevent others from trying to make the same journey.

The administration now acknowledges it cannot use detention as a deterrent to others and has taken other steps to more quickly process illegal immigrant families, making initial asylum claim determinations much faster than in previous years, which reduces the time many of them remain in detention.

But officials told Judge Gee they need to detain families for at least a few days in order to make their determinations and conduct necessary health screenings.

The Justice Department asked for a hearing later in August to present more evidence to the court, hoping to convince her that she misread the situation and to change her preliminary ruling.

“The bottom line is that the court’s order is addressing a factual context that no longer exists (even assuming it did) and that does not apply to anyone currently housed at a family facility. Therefore, defendants request that the court reconsider its order and proposed remedy,” Mr. Mizer wrote.

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