Immigrant families seeking asylum held hands as they left a cafeteria at the ICE South Texas Family Residential Center in Dilley, Texas, last year.
Photo: Eric Gay/Associated PressWASHINGTON—The Trump administration is nearing a deal with some immigrant advocates that would present a choice to jailed parents fighting denial of asylum: let their children be released without them or remain detained together indefinitely, according to federal court filings and lawyers for the children.
The deal is being negotiated between U.S. Immigration and Customs Enforcement and attorneys representing roughly 100 children in detention, a development that has divided the pro-immigrant advocacy community.
If enacted, the “binary choice” plan, as it is known, would realize a long-sought goal by the Trump administration not to release immigrant families seeking asylum together in the U.S., often after fleeing gang violence in Central American countries. It would allow parents to choose between releasing their children to relatives in the U.S. or long-term foster care, or keeping their families in detention, waiving rights given to the children under a 23-year-old court settlement.
That settlement, known as the Flores agreement, requires ICE to release migrant children in its custody, not entire families, though past administrations, including the Trump administration until last year, largely complied with it by releasing children together with their parents.
Most immigrant advocates oppose “binary choice,” arguing it is tantamount to a new family separation policy, akin to a policy the administration adopted briefly in 2018 to prosecute all adults crossing the border illegally. The policy resulted in children being taken away from those adults. The government halted those family separations after a broad bipartisan outcry, though it has been looking for other ways to deter migrant families from seeking asylum ever since.
“Asking a parent to choose between indefinite detention in a place where there is already a Covid outbreak and being separated from your child for an undetermined length of time, that is a coercive situation,” said Stephanie Alvarez-Jones, a staff attorney with Proyecto Dilley, which provides legal representation to families at the South Texas Family Residential Center in Dilley, Texas.
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The lawyers working with ICE, who represent the children in continuing enforcement of the Flores agreement, say they are left with little choice and aim to protect the best interests of the migrant children.
“By negotiating, we’ve been able to substantially lessen the harshness of ICE’s proposal,” said Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law, which has managed the Flores Agreement.
ICE declined to comment on the details of the case, citing the pending litigation.
The lawyers filed a joint brief with the Trump administration late last week, asking a court to give both sides more time to put a “binary choice” system in place.
U.S. Judge Dolly Gee of the Central District Court in Los Angeles has overseen the government’s adherence to the settlement, and in late June, she ruled that all children in government family detention centers must be released given the rapid spread of Covid-19 in ICE jails.
“The family residential centers are on fire and there is no more time for half measures,” she wrote in the June 26 order, which initially gave the government a deadline that expired July 17. She then granted ICE and the Flores lawyers a 10-day extension to work together on a new system.
U.S. District Judge Dolly Gee oversees the government’s adherence to a 23-year-old settlement involving limits on the detention of immigrant children.
Photo: /Associated PressICE has reported more than 3,600 Covid-19 cases in its jails and three deaths since the agency began testing for the new virus in February. Forty-four cases of Covid-19 have been reported at one family detention center in Karnes City, Texas.
Mr. Schey said his organization and ICE have been in negotiations for three weeks over what the process of providing parents a choice could look like, though several key sticking points remained.
One such issue is the legal fate of potential guardians who take care of the children while their parents are in custody. Many guardians are themselves unauthorized immigrants, and ICE didn’t want to agree to not use information gained through vetting of guardians for future immigration enforcement, Mr. Schey said.
Other lawyers representing the families in detention, held at centers in Texas and Pennsylvania, say there is no humane way to take children away from their parents, and they doubt ICE can quickly come up with adequate protocols to make sure families can be rapidly united.
They point to an incident in May when ICE made a similar attempt to implement binary choice. Immigration officials gave parents forms asking whether they wanted their children released. But the forms were in English, which isn’t most migrants’ first language, and parents were denied a chance to speak with their lawyers.
In court documents filed the next day, ICE listed “parent does not wish to separate” as the reason for denying the release of 177 children.
The Trump administration has put in place a range of policies this year to keep families outside the U.S. while they file asylum claims and to make the claims tougher to win. The moves have been met with opposition at every turn.
The government has repeatedly argued that the 20-day detention limit imposed by the Flores Agreement serves as a magnet for migrant families to cross the border. The administration attempted to vacate the court settlement by issuing a new policy in August that would have given the government the power to indefinitely detain families, but Judge Gee blocked the new rules from taking effect.
The administration has since made asylum even more difficult to attain by introducing a different set of policies, which are being disputed in court. They raise the initial threshold to qualify for asylum and other humanitarian protections. The changes have meant that, whereas most families last year would have cleared the initial hurdle and been released, nearly all are now failing, allowing the government to move to swiftly deport them.
A different set of court orders since the coronavirus pandemic began temporarily blocked the government from deporting the families currently jailed amid the continuing legal fight over the Trump administration’s asylum changes. Yet another court, in Washington, could also rule soon in a case seeking to have the families released together, which would upend the government’s “binary choice” plan.
Denise Bell, a spokeswoman for Amnesty International USA, said ICE is creating a series of false choices for parents and families, since it has the discretion to release them from detention at any time.
“Where is the humanity?” Ms. Bell said. “That’s what we are coming down to, simple humanity.”
Key Dates in the Family Separation Dispute
- 1985—Flores v. Meese, a federal class-action lawsuit challenging the jailing of immigrant children, is filed in U.S. District Court for the Central District of California.
- 1997—The federal government settles the Flores case and agrees to a series of rules about the conditions under which immigrant children can be held by the federal government.
- 2014—The Obama administration—facing record numbers of illegal border crossings by unaccompanied immigrant children and families with children, mostly from Central America—opens two family detention centers in Texas and one in New Mexico, converting the Border Patrol’s training facility into a makeshift jail.
- 2015—U.S. District Judge Dolly Gee rules that the Flores agreement covers all immigrant children, including those who arrive with their parents, and orders the government to release children to child welfare authorities within 20 days of their arrest at the border. The Obama administration begins to apply the 20-day order to all families in its custody.
- April/May 2018—Then-Attorney General Jeff Sessions announces a zero-tolerance policy to criminally prosecute nearly all adults caught crossing the border illegally as crossings by families and unaccompanied children, mostly from Central America, again hit records. About a month later, he says the policy includes parents who cross illegally with their children, formally launching the Trump administration’s family separation policy.
- June 2018—President Trump signs an executive order ending the family separation policy. Days later, a federal judge in San Diego bars the administration from separating families as part of a class-action lawsuit. The judge also orders that families must be reunited, a process that would take months as U.S. government officials tried to fully account for the thousands of children who were separated.
- Winter 2019 to Present—The Trump administration launches initiatives aimed at curbing the flow of migrant families and children across the border, barring many from eligibility for asylum. The policy changes are still being litigated.
- June 2020—Judge Gee orders that children from roughly 100 families, which were in long-term detention as they challenged deportation orders in federal court, must be released.
Write to Michelle Hackman at Michelle.Hackman@wsj.com and Alicia A. Caldwell at Alicia.Caldwell@wsj.com
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