Immigrant rights advocates are cheering a federal judge’s ruling that says illegal immigrant families fleeing violence in Central America must be processed quickly and released into the U.S., though the court order leaves room for many of them to be detained.
Judge Dolly M. Gee, ruling late Friday, limited the Homeland Security Department’s ability to hold women and children who cross the border unlawfully as a family. Under a 1997 court settlement, Judge Gee said, the children must be released in short order and placed with family — and that often means releasing the mothers so they can care for their children.
But the judge seemed to push back an earlier ruling. She said there are exceptions, such as border surges, that give agents more flexibility in the length of time they can hold illegal immigrants and what kinds of facilities they can use.
“At a given time and under extenuating circumstances, if 20 days is as fast as defendants, in good faith and in the exercise of due diligence, can possibly go in screening family members for reasonable or credible fear, then the recently implemented DHS polices may fall within the parameters of Paragraph 12A of the agreement, especially if the brief extension of time will permit the DHS to keep the family unit together,” Judge Gee wrote.
Still, she was critical of Homeland Security’s legal arguments and at one point accused officials of fearmongering when they warned that not being able to detail illegal immigrant families could lead to another spike in unlawful border crossings.
Activists were pushing for the judge to forbid detainment of families. Still, the activists said the ruling was an important marker for human rights.
“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.”
President Obama and his top legal and immigration aides now must 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 the surge last year, when more than 60,000 unaccompanied minors, and 60,000 more mothers with their children, were 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 to make it more likely that they would be deported — thus sending a message to Central America that attempting to cross the border would be futile.
The administration said the policy helped stem the surge, but Judge Gee said that was speculative. Also, she said, the migrants were subjected to conditions were unacceptable under terms of the Flores settlement, a 1997 deal reached between the Clinton administration and attorneys for illegal immigrants.
Homeland Security and the Justice Department argued that the Flores agreement applied only to children traveling without parents, but Judge Gee ruled that it applies to all illegal immigrant children, extending the same protections that require them to be released from custody quickly.
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 migrants who bring their children on the dangerous journey, knowing that they will be released quickly and can disappear into the shadows in the U.S.
Judge Gee rejected that outright. “This statement is speculative at best, and, at worse, fearmongering,” she said.
The number of unaccompanied children and families swelled in July, defying historical patterns and suggesting another surge may be in the offing.