The Courts Won’t Free Migrant Children Because of COVID-19. We Must.

Part of the Series

Despair and Disparity: The Uneven Burdens of COVID-19

Migrant child detention is in the national spotlight again. Because of COVID-19, a U.S. District Court is considering mass release of children from Immigration and Customs Enforcement (ICE) and Office of Refugee Resettlement (ORR) custody. Like many times before, coverage of this story has not included voices of community and family members who have resisted migrant child detention for years. My organization, Little Village Solidarity Network (LVSN), a Chicago-based group fighting migrant child detention, obtained copies of the judge’s initial opinions. The opinions do not inspire trust that the court will ensure the children’s safety, and community groups will continue direct pressure on ORR and ICE facilities. However, this court case is a rare moment – advocates have said “free them all” for years, and this is the first time we are seeing that possibility debated in court, though centered on COVID-19.

On March 26, the National Center for Youth Law and co-counsel filed an application with a U.S. District Court claiming that, in light of the coronavirus pandemic, immigration authorities are breaking the law by not releasing most children immediately. The lawyers petitioned the court to force detention facilities to release all the children they can, provide justification for any who are not released, and prove that they are complying with the COVID-19 guidelines issued by the Centers for Disease Control and Prevention (CDC). On March 28, District Court Judge Dolly M. Gee issued an initial ruling granting some of the lawyer’s requests and denying others.

Judge Gee denied the request to immediately release the children en masse. However, the court did order that (1) by April 6, ORR and ICE must provide a summary of steps they are taking to release the children; (2) by April 9, all ORR and ICE facilities must undergo inspection to collect evidence on their health and safety protocols; and (3) by April 10, ORR and ICE must justify the detention of each child still in custody.

ORR and ICE filed their arguments on April 10 and provided supplementary information on April 17. Judge Gee issued a brief response to ORR and ICE’s filings, noting that ICE provided “minimal detail” about the circumstances of each child still in their custody, while ORR provided detailed documentation for children still detained in 33 facilities located in the states with the largest COVID-19 outbreaks at the time. After April 24, the District Court will issue a final decision, determining whether ICE and ORR have broken the law in their continued detention of children and setting a timeline for the children’s release.

Odds do not look good for the court to order an immediate release of all the children. Judge Gee’s opinion states, “the interests of all parties and the public are not well served at this time by rushing to release minors en masse in the midst of the current travel restrictions or to release them to potentially unfit custodians based on limited information.” The District Court appears to be sympathetic to the argument that as many children as possible should be released as quickly as possible. However, if the court does rule in this direction after April 24, the process will likely be longer, more complicated, and less comprehensive than community groups and families may want. ORR and ICE have the discretion to expedite children’s cases even without a court order, and while these court proceedings unfold, community groups will continue pressuring detention facilities to release the children.

In considering the health and safety conditions of ORR and ICE facilities, the Court seemed unable to reconcile the fact that social distancing is not possible in detention. The Court ruled that ICE was “deficient” in nearly all of the CDC’s pandemic guidelines. However, the Court found that “ORR appears to be in substantial compliance” with its “obligations to implement CDC-compliant guidelines.” Judge Gee did not explain how the court found ORR to be compliant while stating that ORR “fails to address recommendations related to social distancing, personal hygiene, or personal protective equipment.” The Court also notes that ORR custody qualifies as “congregate care” under CDC guidelines and that congregate care “refers to settings where numerous people sleep, eat, bathe, and participate in daily activities in close quarters and, by definition, is incompatible with social distancing.” The Court does not reconcile how it can find ORR to be in “substantial compliance” while its facilities are “by definition” incompatible with one of the most important CDC recommendations, social distancing.

One surprising aspect of the Court’s March opinion was that it appeared to confirm truths accepted by community struggle but denied by immigration agencies: that children are being unnecessarily detained and remain in custody for longer than is justifiable even by their own rules. Consider this passage from Judge Gee’s March opinion (emphases added):

As of December 31, 2019, of the 4,562 minors still in custody at that time, nearly half of them had been in custody for less than 20 days, but 11.6 percent had been in custody for 31-60 days and – incredibly – 11.7 percent had been in custody for six months to one year … ORR’s data do not indicate why the agency failed to release these minors or how many of them have sponsors. Although … data from 2018 indicates that the vast majority of children in ORR’s care had close family members available as custodians, neither party has provided more updated information.

Judge Gee also noted that ORR’s “apparent failure” to document its reunification efforts made it difficult to ascertain how many releases were delayed “without good reason,” which would violate the law, prompting her demand for detailed justification for all children remaining in custody in ICE and ORR’s April 10 filings. Families of migrant children and their allies have pointed out for years that the majority of detained children have family already in the United States, that they could be reunited with these relatives quickly, and that this method of incarceration is unnecessary and cruel. Furthermore, detaining these children for longer times reaps information that benefits immigration enforcement but does not benefit the health and safety of the children. While Judge Gee does not echo those arguments, the data presented in the court opinion tells its own story and affirms certain truths that immigration officials continuously deny.

It is important to emphasize that these children are not detained because they have violated immigration law. All “unaccompanied” migrant children are detained automatically in mandatory, mass detention. While detained, the government investigates the children’s family to approve a “sponsor.” The child is then released to the sponsor to await their immigration trial (most qualify for asylum). It is the only form of incarceration in the U.S. that does not have bail – the only way for families to reunite is to cooperate with the investigation. However, the collected information is available to ICE’s deportation machinery. LVSN recently published testimony of a young man named José who was detained in ORR facilities for 322 days because he refused to cooperate with the investigation of his family. He would not provide any information to ORR, well aware of how it could be used, and stayed locked up until he turned 18. He was then transferred to an adult ICE prison and his family paid his bail immediately. “They just want to know anything they can get from you,” José said. “They ask you questions. And if you don’t answer, they tell you that you will not see your family. So, what they’re basically doing is blackmail.”

Because of stories like José’s, LVSN was keen to see how ORR and ICE would attempt to justify the cases of children who have been in custody for so long in their April 10 filings. Families and allies of the children can provide many reasons: According to former volunteers with Interfaith Community for Detained Immigrants, Muslim children are generally held longer than all other kids. A small percentage of children have no family or connections in the U.S. or have far more complicated cases. Children resist the investigation to protect their families. What would ICE and ORR say?

On April 10, ICE still refused to provide details on individual children’s circumstances, simply stating the number of children in custody and the fact that the remaining children were all subject to court dates. In Judge Gee’s response, the Court noted that, “ICE’s uniform perfunctory explanations for non-release seem to imply that a blanket prohibition on release exists” for children with pending court cases. According to Judge Gee, ICE did not address “what individualized parole determinations and continuous efforts to secure a minor’s release” ICE is undertaking in the circumstances of the pandemic.

Meanwhile, ORR’s detailed documentation provided new information on their internal justification for continued detention. ORR’s reasons for non-release included that the agency has a blanket ban on releasing children to sponsors in New York, California and Washington State (although it was unclear if this policy had been extended to other states with shelter-in-place orders). Additionally, ORR issued a blanket ban on releasing children held in facilities with confirmed cases of COVID-19, despite the possibility of children quarantining safely at home. Finally, ORR has refused to adapt its fingerprinting and home inspection requirements to approve sponsors, despite the pandemic-related closure of fingerprinting facilities and suspension of home inspection visits. Judge Gee noted that both ICE’s “cursory and unsatisfactory efforts” and ORR’s “failure to adapt” present “several issues that may result in unnecessary delay of minors’ release” that may violate the law. However, these possible violations still may not guarantee the immediate freedom of the children after the Court’s April 24 ruling.

Communities resisting migrant child detention refuse to be idle while the court debates; the effects of COVID-19 are dire for the children. ProPublica recently released leaked emails confirming the largest outbreak of COVID-19 in a migrant child detention facility in Chicago, with 42 of 69 children in custody testing positive. LVSN visits this center frequently to advocate for immediate release and have taken photographs of children holding up signs reading “HELP” from the windows of the facility.

Children who are currently detained are also still expected to show up for their immigration court dates in person. Meanwhile, no new children are being taken into ORR/ICE custody; the Trump administration has used CDC guidelines to justify the immediate deportation of children who arrive at the border who would have otherwise been placed in these facilities.

These immediate deportations likely violate the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), a 2008 law that reinforced the mass detention of migrant children but also mandated more extensive legal counsel and other protections for children fleeing violence and abuse. In his recent Just Security exposé of the administration’s COVID deportations, Professor Lucas Guttentag of Stanford Law School writes, “The COVID border ban attempts to erect a shadow immigration system devoid of constitutional protections that erases fundamental statutory safeguards implementing refugee protection obligations.” He emphasizes that the TVPRA makes unaccompanied migrant children “entitled to procedural and humanitarian protections, including a determination of whether they fear return or are at risk of being subject to human trafficking,” and that “none of these mandates or requirements is addressed or respected in the CDC expulsion process.”

Community groups like LVSN will continue to put direct pressure on ORR and ICE facilities to expedite the release and reunification of the children. We will also continue to respond as ORR and ICE attempt to justify themselves, regardless of how the District Court rules after April 24. The court case is not the only terrain of struggle for the well-being of migrant children. We will continue to make our voices heard through direct action and public pressure until we achieve what the courts can’t or won’t – freedom for all migrant children.