Washington – Roughly 1,400 mothers, fathers and children locked up awaiting their asylum hearings could soon be released as the Department of Homeland Security works to comply with a scathing federal ruling against the Obama administration’s expanded use of family detention camps.
Advocates estimate about 80 percent of the parents and children currently being detained at family detention facilities have been held for more than the roughly 20 days allowed by the ruling.
Judge Dolly Gee of the U.S. District Court for the Central District of California has given the government until Oct. 23 to comply with her order, which requires officials to release children within five days. But she also provided an exception that allows officials to hold families about three weeks under exceptional circumstances like last year’s surge of nearly 70,000 families from Central America.
Advocates fighting the policy praised the thrust of Gee’s ruling, which found that the administration violated a longstanding agreement on child detention. But they were disappointed about the wiggle room because the extra leeway will allow the government to keep open the controversial centers.
Department of Homeland Security officials indicate they’ll continue to operate close to the manner they’re currently running. More litigation is possible, as the language in the final order has raised questions about whether the government will be able to hold some mothers and children for longer periods of time.
“I continue to feel let down by the response from DHS, which really seems to be clinging to a model that doesn’t work and harms children,” said Clara Long, U.S. researcher at Human Rights Watch. “And they have a lot of money sunk in that model. So I guess it’s understandable that they want to cling to it.”
Federal officials disagreed with the overall findings but added that the language inside the ruling confirms that steps being taken by the administration to cut the time spent at the family detention centers complies with the order.
Gee found that the administration’s family detention policy violates an 18-year-old court settlement regarding the detention of migrant children. She described the conditions as “deplorable” and the government’s defense of the practice as “fear-mongering.”
But deep in Friday’s 15-page order, Gee gave the government some space it desperately wanted. She said that children could be held for about three weeks under “extenuating circumstances,” like last year’s surge of Central American migrants.
“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,” DHS spokeswoman Marsha Catron said in a statement.
The average stay now at facilities is currently 20 days, which is used to conduct health screenings and determine whether family members are eligible to remain in the United States, according to federal officials.Under scrutiny from Congress and news outlets like McClatchy, the administration has taken several steps to cut down the detention program. Hundreds of mothers and children have been released. Some had been in detention for over a year.
Luis Zayas, dean of the School of Social Work at the University of Texas at Austin, said that while three weeks is better than a year, it’s still too long to detain children.
He specifically cited the judge’s concerns about the government’s holding facilities on the border. Children and their parents are placed along with other immigrants in cold cells – described by many migrants as hieleras, or iceboxes – which advocates say are used to pressure migrants to agree to deportation.
“We treat our pets better than we treat these detainees in such subhuman conditions,” Zayas said.
The Obama administration is currently detaining more than 1,900 parents and children at three detention facilities, two in Texas and one in Pennsylvania.
Advocates said they’ll be watching closely to see what the government does. Several unanswered questions remain that could lead to the two sides returning to court. They include:
– Is the 20-day time limit acceptable under current migration levels? Or would it only be acceptable under a larger surge of migrants?
– Does the 20 days start at the time of arrest or when migrants are checked into a family detention center, which can be several days later?
– What happens after 20 days? How will this be enforced?
– Can the government continue to detain mothers and children if they lose their initial asylum request but appeal?
“I think in November it’s possible litigants will be back in court again,” said Barbara Hines, a University of Texas law professor who litigated the case leading to the closure of the T. Don Hutto Residential Center in Taylor, Texas, in 2009.