U.S. District Judge Dolly Gee of California has ordered the release of all migrant children currently held in custody by the U.S. Immigration and Customs Enforcement (ICE).  The ruling, made on June 26, stems from the “unrelenting spread of the coronavirus” and ICE's failure to adequately protect detained children from the ensuing disease, COVID-19.  “Although progress has been made,” writes Judge Gee, “the Court is not surprised that [COVID-19] has arrived at both the [Family Residential Centers] and [Office of Refugee Resettlement] facilities, as health professionals have warned all along.”  As a result, efforts must be made with “deliberate speed” and ICE must release these children by no later than July 17.

Understanding the Order

This order essentially forces ICE to adhere to laws established in the 1997 Flores Settlement Agreement—a settlement agreement which requires the government to detain children in safe and clean conditions and release them “without unnecessary delay.” Gee specifies that the order applies to all children, aged 1- to 17-years-old, who are currently being held by ICE for a period of more than twenty days. These are children either being kept in all three of the country's family detention centers—two of which are located in Texas, one of which is in Pennsylvania—or in shelters housing unaccompanied minors.  As NPR reports, “court documents show that as of June 8 there were 124 children in the three detention centers, housed alongside family members. Another 507 children were in Office of Refugee Resettlement shelters as of June 7.”  Some of these children have been detained since last year. 

Cases of COVID-19 have emerged within these family detention centers. This is not surprising, as we have seen in an earlier blog post discussing the outbreaks in ICE facilities.  Practices essential to the prevention of disease—social distancing, for example—are contrary to the nature of detention centers. As of Thursday, June 25, at least 11 people at a family detention center in Karnes City, Texas, tested positive for COVID-19.  Vox reports that the other Texas family detention center in Dilley placed “at least three parents and children—including a child who turned 2 [the same week of the order]—were placed in isolation after two private contractors and an ICE official tested positive for the virus.” In her order, Judge Gee writes that, until the July 17 release date, “ICE shall urgently enforce its existing COVID-19 protocols, particularly in the following areas: social distancing, masking, and enhanced testing.”  

Of course, the release of these children begs the following two questions: where will they go? Does the order apply to their family members? We find their answers within the order itself, which reads:

“ICE shall transfer Class Members who have resided at the FRCs for more than 20 days to non-congregate settings through one of two means: (1) releasing minors to available suitable sponsors or other available COVID-free non-congregate settings with the consent of their adult guardians/parents; or (2) releasing the minors with their guardians/parents if ICE exercises its discretion to release the adults or another Court finds that the conditions at these facilities warrant the transfer of the adults to non-congregate settings. If it is deemed necessary, ICE may apply location monitoring devices to those who are released.”

In short, detained minors are to be released to a COVID-free setting with the consent of their parent or guardian or, in certain circumstances, they can be released with their parent or guardian.  Immigrant advocates contend, as Time points out, that “ICE should release all families from detention especially as the coronavirus has spread rapidly through immigration detention.”

Leading up to the Order

The legal battle over the detention of migrant children is far from new; the pandemic has simply intensified it.  For the first time, however, a court has set a deadline for their release.  This is due to the fact that individuals living in congregate settings—like ICE detention centers—are more vulnerable to the virus.  Groups like the ACLU have been suing for the release of immigrants from detention centers since the beginning of the pandemic. 

The beginning of the pandemic also brought forth orders regarding migrant children even preceding the one made on June 26.  In late March, Judge Gee ordered ICE to “promptly release immigrant children from custody or explain why they must continue to be detained.”  In April, she followed this with an order for ICE to “conduct individualized release assessments for children in custody.” As a result, families were offered a binary choice: either stay together in detention or allow children to be transferred to the care of a family member, sponsor, or the Department of Health and Human Services.  ICE officials said the policy was “implemented to ensure the health and safety of the children in question” and denied that it was “pursuant to binary choice.” Nonetheless, it spurred backlash.  Democrats of the U.S. House of Representatives wrote a letter addressed to acting Homeland Security Secretary Chad Wolf and acting ICE Director Matt Albence in response.  The letter, as quoted by CNN, urges the Administration to “stop using this public health crisis as a means for implementing unlawful and inhumane immigration policies.” Fortunately, this most recent order curtails the need for any sort of “binary choice” policy and could instead result in the long-awaited release of entire families.