The Obama administration must begin releasing illegal immigrants mothers and children by October, a federal judge ordered late Friday in a ruling that punctures the last remaining get-tough part of President Obama’s immigration policy and, the administration believes, sets the stage for a new surge of illegal immigration.
Judge Dolly M. Gee called the administration’s warning about a new surge “fear-mongering” and rejected a last-ditch effort by the administration to try to force a rehearing of her decision. In the process, she delivered a monumental victory to immigrant-rights activists, who for a year have been trying to get Mr. Obama to stop the detention of families, arguing it’s inhumane treatment.
The judge’s order doesn’t halt all detention but limits the administration’s ability to hold mothers and their children, ordering that they be quickly processed and released. She also ordered the children must be held in a licensed facility and that it cannot have jail-like security — a standard Homeland Security told her would be difficult to meet.
“Defendants routinely failed to proceed as expeditiously as possible to place accompanied minors, and in some instances, may still be unnecessarily dragging their feet now,” the judge wrote.
She said Homeland Security does have some flexibility, particularly if the department is facing a surge of illegal immigrants, such as the one that began last year. But that puts the president in a tough spot: In order to claim broader powers he must admit his efforts at border security have fallen short.
Activists cheered the judge’s decision, saying it will result in better treatment for some illegal immigrants.
“Detaining children and their families who seek protection in the United States betrays a long American tradition of protecting the persecuted,” said Human Rights First’s Olga Byrne. “Detaining children and their families — many of whom have suffered immeasurable trauma in their home countries — does serious physical and mental damage, even when detention lasts only a few weeks.”
Mr. Obama and his top legal and immigration aides must now decide whether to appeal, but Homeland Security officials were relieved that the judge’s order does give them some leeway.
“While we continue to disagree with the court’s ultimate conclusion, we note that the court has clarified its original order to permit the government to process families apprehended at the border at family residential facilities consistent with congressionally provided authority,” said Homeland Security spokeswoman Marsha Catron.
“As family residential centers continue to operate consistent with this order, DHS will continue to screen family members’ claims as expeditiously as possible, while ensuring that their due process rights are protected,” she said.
Detaining families was one of the president’s answers to last year’s illegal immigrant surge, which saw more than 60,000 unaccompanied minors, and 60,000 more mothers with their children, caught at the border. At the peak in May and June, more than 10,000 unaccompanied children and 10,000 family members traveling as groups were caught each month.
Under the Obama administration’s interpretation of the law, it had to quickly release most of the unaccompanied children into the community, but it decided to try to detain more of the families, holding them in order to make it more likely they would be deported — thus sending a message back to Central America that attempting to cross would not work.
The administration said the policy was successful in helping stem the surge. But Judge Gee said that was speculative, and said besides that the conditions the migrants were subject to were unacceptable under the terms the Flores settlement, a 1997 deal reached between the Clinton administration and lawyers for illegal immigrants.
Homeland Security and the Justice Department had argued the Flores agreement only applied to children traveling without parents, but Judge Gee ruled it applies to all illegal immigrant children, extending the same protections that require them to be quickly released from custody. Further, they are supposed to be left in the custody of their family — and Judge Gee ruled that means their parents, even if they jumped the border with their children, should be released.
The Obama administration argued that turns the children into a kind of human shield against detention and could invite a new wave of illegal immigrants who bring their children on the dangerous journey, knowing that they will quickly be released and can quickly disappear into the shadows here.
Judge Gee rejected that outright.
“This statement is speculative at best, and, at worse, fear-mongering,” she said.
Her ruling comes as both the number of unaccompanied children and families swelled in July, defying historical patterns which called for a decrease, and suggesting a new surge may be in the offing.
Judge Gee’s order applies to both Border Patrol facilities, which hold the families just after they arrive, and to Immigration and Customs Enforcement facilities, which take then once they’ve been processed by the Border Patrol and turned over to deportation officers in the interior.
The judge found the Border Patrol maintained “deplorable conditions” at some of its holding facilities, and said the administration botched its own legal case by never presenting any evidence to the contrary.
“It is too late for a second bite at the apple,” she wrote.