As the COVID-19 pandemic rips through immigrant detention centers, federal immigration authorities are presenting parents detained alongside their children with a “binary choice”: remain detained together where a deadly virus is spreading, or send their children away to live with sponsors—government-vetted relatives living in the U.S. Media outlets nationwide have blamed this latest “episode of cruelty” on the Trump administration, but evidence suggests that for several years, a similar binary option triggering family separation has been promoted by a lauded immigration attorney long responsible for representing thousands of detained children: Los Angeles, California-based lawyer Peter Schey.

For decades, Schey has been entrusted with representing migrant children in the legal fight over whether the government meets their basic standards of care when they are detained. Attorneys, advocates, and health professionals emphasize that the best interests of detained children include both release from unsafe detention facilities and staying together with their parents to avoid the long-term and significant psychological harms of separation. According to fellow attorneys, however, Schey’s push for a protocol that would trigger family separation focuses entirely on the release of a child from custody and utterly fails to account for the crucial interest in keeping families together. 

“Send the child to an auntie’”

The 1997 consent decree known as Flores is a class action settlement between a class of detained migrant children and the United States government that requires federal immigration authorities to hold immigrant children in “safe and sanitary” conditions inside of non-secure, licensed facilities. The government cannot detain these children for more than 20 days. The settlement arose from a class action against the former Immigration and Naturalization Services (INS) filed by the ACLU on behalf of a young girl who was mistreated while in custody, along with the wider class of detained immigrant children.

Schey’s name has become synonymous with the Flores Settlement Agreement because the 73-year-old has represented the plaintiff class of detained children since the Flores case was first filed in 1985, but leading attorneys who represent detained families told Prism that as counsel, Schey is “failing at basic functions of his job” and taking positions they “disagree with both ethically and legally.”

Attorneys who spoke to Prism said they started to notice “red flags” when working with Schey under the Obama administration, which expanded family detention in 2014. This is around the time that immigration attorneys like Carol Anne Donohoe began representing migrant families experiencing prolonged detention, sometimes as long as two years.

That work is how Donohoe first met Schey in 2015 when she was representing families detained at the Berks County Residential Center in Leesport, Pennsylvania, one of the nation’s three family detention centers. Like other attorneys who spoke to Prism, Donohoe said she was initially in awe of Schey, who for decades has been uplifted as a human rights attorney and a defender of migrant children. But not long after their first interactions, Donohoe said “the cracks started to show,” particularly when she sought legal guidance from Schey regarding families who had been detained for two years.

“He would say, ‘Why not just give the parents the option to send the child to an auntie?’ I told him repeatedly that the parents didn’t want that; they don’t want to be separated from their child,” Donohoe said. In court proceedings for Flores, Schey has essentially made the same argument.

For example, court transcripts of a January 30, 2017, evidentiary hearing for Flores show that long before the “binary choice” protocol made headlines and placed blame on Immigration and Customs Enforcement (ICE) for “Family Separation 2.0,” Schey advocated for a “simple process” that would effectively separate detained families.

“[T]he government makes it like it’s the end of the world for them to do this, but in fact … it probably takes a five-minute conversation with the mother to say… ‘You’re detained. We’re going to detain you… [D]o you have any close relative or a friend who you would like to place your child with[?],’” Schey said in court.

Attorneys who spoke to Prism said it has been “surreal” to watch Schey’s behavior unfold. “I don’t even have words to describe what it’s like to now hear that he is in court advocating for a policy that he’s been pushing behind the scenes for years. This is the number one person in the Flores case, and he’s advocating for family separation,” Donohoe said.

It is because of Schey’s advocacy around the binary option that organizations like ALDEA, Proyecto Dilley, and the Refugee and Immigrant Center for Education and Legal Services (RAICES) filed an amicus curiae brief during Flores proceedings last month. As ALDEA co-founder and attorney Jacquelyn Kline told Prism, “there was relevant and important information missing from the filings” Schey and the government submitted. As advocates, Kline said they could not “ethically lend their support where it would be adverse to their clients’ interests.”

Kline and her partner Bridget Cambria began representing migrant families in 2014 under the Obama administration, when multiple families were subjected to prolonged detention in violation of Flores. They went on to form ALDEA—The People’s Justice Center, and have provided pro bono legal services to more than 200 families detained at Berks.

Kline first began interacting with Schey in 2014 and for the last six years, she said the lead counsel on Flores has been “fixated” on a child’s right to be released from detention without their parent, i.e. family separation. As an advocate and attorney, she said she finds the binary option “terrifying” because the government has already shown its willingness to detain migrant families for years or separate them with no recourse for reunification.  

Kline said that in recent years Schey has repeatedly brought up the binary option in Flores enforcement hearings in court. In other words, the protocol that now exists and may be weaponized by ICE to create and enforce Family Separation 2.0, seems to be an iteration of something Schey has spent years advocating for. Before Schey’s efforts, Kline said, the government did not propose the protocol and did not appear to be advocating for the creation of such a protocol.

“When something was going on with the families, we would call him and tell him whatever horrible thing was happening. We’d say, ‘What do we do about these violations, how do we go about enforcing their Flores rights?’ Every time we would get the same response from Peter, which was that the parents could agree to release their children and it would ‘solve the problem.’ He’d say, ‘The parent could always release the child to an auntie,’ or, ‘Their mommy could just let them go to an auntie.’ None of the parents wanted to be separated from their children, but that was always his first response.”

In a statement to Prism, Schey wrote that the binary option did not originate with him; the choice parents have to either keep their children with them or have them released to relatives is part of the 1997 settlement. “Since 2015 the courts have ruled that children have the right to be released unless they are a flight risk, a danger, or their parents prefer that their children not be released,” Schey wrote. “That was always true under the settlement but was clearly articulated by the courts starting in about 2015-16.”

When asked directly if he believed it was in the best interest of detained children to separate from their families, Schey said he has “never believed” it is in their best interest and that he does not believe parents and children should be detained at all.

Under Trump, Schey said parents and children are no longer being promptly released together and that ICE attempted to question parents about whether they wanted their children released, which he said led advocates to submit declarations to the court about how “terrible” the process was.

“The court responded by ordering the parties to try to work out a protocol so that any decision made by a parent would be as free and voluntary as possible. The court will decide what the protocol should include after receiving the views of the parties,” Schey wrote. “We have worked with thousands of parents and know they make binary choices from the moment they decide to leave their home countries. At bottom, lawyers representing the parents must make strong legal efforts to win the release of parents. We do not represent the parents and the Flores settlement only extends release rights and the right to safe and sanitary conditions to children.”

Schey went on to say that there are “several legal and political steps” lawyers representing detained parents can take, and “those avenues should all be explored.”

“In the end, while the choice is a difficult one, we believe its [sic] parent’s choice about whether a child will remain with them, not a choice we, or the court, or the government should be making,” Schey wrote.

“A million questions and zero answers”

On the surface, it may not seem like a bad option to offer detained parents the ability to release their children to sponsors in the U.S.—often close relatives or other trusted friends and family. However, immigration attorney Amy Maldonado explained that advocating for a protocol that would effectively separate families at the beginning of the asylum process is “deeply harmful.”

“Children are best served to go through the asylum process with their parents and with representation,” said Maldonado, who represents detained families in federal court. “When parents are represented in their asylum cases, they often win. If they don’t, they may have to make a hard decision about what happens to their child if they are going to be deported, but that is absolutely not a decision we should be forcing parents to make up front before the asylum process.”

Maldonado, Kline, and Donohoe told Prism that Schey doesn’t actually have any direct communication or interactions with the children he represents. Instead, he relies almost entirely upon on-the-ground advocates for evidence, information, and other resources related to Flores violations. Perhaps this is why—as Maldonado said—Schey appears “disconnected or does not care” about the amount of harm that is done when the bond between a parent and child is severed.

There are years of evidence regarding the long-termpsychological and health effects associated with family separation. Experts say “loss of the attachment bond” is referred to as “soul murder” and one of the most damaging childhood adversities. Family separation also goes against the express wishes of every parent currently detained alongside their children. In fact, none of the more than 100 detained families have agreed to accept the binary option; all have refused to sign any paperwork either agreeing to release their child or agreeing to keep them detained during the pandemic.

“This is coercive, and it’s not a real choice if the only option being offered for your kid to stay with you means subjecting them to a deadly virus. Every single parent we represent says they do not want to be forced to make this choice; they want to be released with their children,” Maldonado said.

According to the latest order from U.S. District Judge Dolly Gee, ICE should release children who’ve been detained in the nation’s three family detention centers for more than 20 days by July 17—though this does not apply to their parents. If parents were to consider the binary option, attorneys who spoke to Prism said that Schey has never offered answers or insight into how the process would work. If parents want to remain with their children, does that mean they’ve opted out of Flores and their children could be subject to indefinite detention? Does it end the child’s right to safe and sanitary conditions? Would children who arrived in the U.S. with their parents as accompanied minors be rendered unaccompanied if they are released from family detention? Maldonado said there are “a million questions and zero answers.”

Maldonado alleges that in a Zoom meeting last week, Schey said kids who are released from family detention without their parents will be better off because they can eventually get green cards. He also shared that he and the government have already agreed on most of the terms of the binary choice protocol. In the Zoom meeting, Maldonado said Schey explained parents cannot have counsel present with them when ICE asks them to decide if they will separate from their child. After parents are forced to make a decision with ICE, the federal immigration agency will inform their counsel. Maldonado said it’s unclear if this is true or not because attorneys have not received any concrete information or guidance from Schey, outside of what he shared in the meeting.

“We cannot advise anyone because we have no information about the policy. Even if we got the final waiver forms from Peter tomorrow, it’s not humanly possible to analyze the policy and advise hundreds of people by [July 17],” Maldonado said.

In his statement to Prism, Schey clarified that if a parent does not wish to have their child released, the child will likely remain detained with the parent as long as the parent is detained “and many will eventually be deported with their parents.” If parents release their child to sponsors, Schey said it is “likely” the child will be rendered unaccompanied unless the child has a non-detained parent to whom they are released. He also told Prism he and ICE have not worked out the specifics of how the binary option will work.

“How a protocol would work is being discussed,” Schey wrote. “The final decision will be made by the court, not the parties.”

“An open secret”

According to attorneys and advocates who spoke to Prism both on and off the record, it has been “an open secret” for years that Schey is not adequately representing the interest of children subject to the Flores Settlement Agreement. Maldonado said that her interactions with Schey have been more recent and less lengthy than other attorneys representing detained families, but she was “shocked” when she realized that even with the pandemic raging in detention facilities, Schey was going to have to be pushed by attorneys on the ground to actively seek relief for detained children.

Maldonado said she and other attorneys felt they couldn’t rely on Flores counsel to bring the issue before the court because in one meeting, Schey told attorneys to simply file individual lawsuits related to COVID-19. Maldonado said they could file “2,000 lawsuits,” but it’s simply easier and made more sense to bring one motion on behalf of the class.

“[Schey] said it would take a long time to gather evidence, but we gathered evidence in one week and provided it to him,” Maldonado said. “Most recently he just seems determined to advocate for family separation and we have decided we cannot ethically participate in that. The class counsel is simply no longer adequately representing the interest of accompanied class members.”

Another issue of contention for attorneys on the ground is how Schey publicly frames the family separation the binary option would trigger. For example, Schey was recently quoted saying that many families would choose to send their children to guardians in the U.S. than have them return with them to home countries where they could be “kidnapped, beaten, and killed.” Schey said something similar to Prism, writing that he did not think detained children would fare better if released to sponsors, but that “some would avoid deportation to countries where they face harm or death.”

Kline said that Schey is perpetuating the idea that if a parent really loved their child, they would give them away⁠—even if it means never seeing them again. “The only other option [according to Schey] is detaining children indefinitely. That means babies learning to walk and talk in facilities where they are locked up with their parents,” Kline said. “He doesn’t seem to see the value in due process rights for these children and their parents, to see the value in family unity, in the very protections that the Flores Settlement gives to these children. It’s very disturbing, and as attorneys and advocates we cannot allow this binary choice to be the norm.”

“Forcing a crisis”

There are larger concerns looming about Schey, namely that in his different roles and capacities he has made a great deal of money as a “defender” of immigrant youth while evidence suggests he has not always acted in their best interests. Advocates allege Schey previously tried to open a shelter for immigrant youth in the 1990s called Safe Haven, but it was shut down by the city of Los Angeles because it did not actually “have an intention to operate as a homeless shelter for children.”

Schey told Prism Safe Haven was closed so that he could pursue Casa Libre, a Los Angeles immigrant youth shelter that opened its doors in 2002 and is overseen by Schey’s legal foundation the Center for Human Rights and Constitutional Law. In August 2018, Univision reported that immigrant youth referred to the shelter by the Office of Refugee Resettlement experienced hunger, cold, neglect, and were never given clothes or shoes.

In May 2019, the Los Angeles Timespublished a piece about Casa Libre, reporting there was a “pattern of neglect” at the shelter, which “was cited by state officials 143 times for failing to meet standards for state-licensed group homes⁠, and 89 of those were for issues that posed “an immediate risk to the health, safety, or personal rights of residents.” Multiple immigrant youth featured in the piece also reported an alarming lack of food at the shelter, including Miguel Elias Guarchaj who said he sold his backpack online so that he could purchase a rotisserie chicken to share with other boys who lived at Casa Libre. Weeks after the publication of the Times investigation, state officials warned Schey the shelter could lose its license if it didn’t comply more fully with state rules for the protection of children.

The lack of food and basic necessities at the shelter has confounded some advocates, given the foundation behind the shelter doesn’t appear to suffer from lack of resources. According to public financial records, Schey’s non-profit organization the Center for Human Rights and Constitutional Law has millions of dollars in assets, including a three-level, six-bedroom luxury home located on a private bluff in Princeville, Hawaii.

According to public records, the home was purchased in 2004 for $1.8 million and it was assessed earlier this year to be valued at more than $3.3 million. In public records, the home is listed as a business property for the Center for Human Rights and Constitutional Law, however it’s featured on a vacation rental site for $429 a night and interested parties appear to book directly through Schey. (Schey told Prism in a statement that when non-profits use the home, they contact him directly. When other interested parties book the property, the Center for Human Rights and Constitutional Law’s “admin person deals with that.”)

Despite these issues, Schey remains a powerful force in the legal sphere, in immigrant advocacy circles, and in Los Angeles, where he is the city’s official immigrant advocate. However, not everyone is happy with Schey’s presence in these spaces.

Early this year, community advocates in San Fernando Valley, California, protested the possibility of a facility opening in the community that would detain immigrant children separated from their parents. According to a statement from the protesters, Schey gave a presentation on January 9, outlining legal approaches and recommendations that were available to the community. One of the options, according to the statement, was to allow for a shelter rather than a detention center. According to a statement from community members who were present, Schey went into detail explaining what a shelter could look like for the community, repeatedly referencing Casa Libre as an example.

Community members expressed being drawn to Schey’s recommendation of a shelter, until they looked him up and read the Los Angeles Times reporting about Casa Libre. They have since created a petition demanding for Schey to be removed from the coalition in the San Fernando Valley and from his post as Los Angeles’ immigrant advocate.

“Since his involvement in the Flores case, Schey has abused his power to profit off of the plight of our migrant children and communities, making millions of dollars in litigation fees, yet neglected to provide the children in his care basic essentials like food and toilet paper, similar to the abuses he accused the government of in the Flores settlement,” the statement reads.  

The creators of the petition acknowledged that while they “honor the work that Peter Schey has done in support of the immigrant community in the past,” that “he should not be considered for participation in any discussions relating to the best interests of migrant children.”

Given recent court proceedings related to Flores, attorneys are now also actively speaking out against Schey, who they say is “advocating for asylum-seeking parents to choose between family separation or indefinite family detention.”

Maldonado told Prism that in the end, the “buck stops with ICE” and the government could simply decide to release detained families during the pandemic rather than forcing them to take the binary option, but the fact that Schey has spent years pushing the protocol should be seen as cause for serious concern.

“Pushing family separation right now is unforgivable. Peter is forcing a crisis on detained parents and it’s one of his biggest failures,” Maldonado said. “Flores was a monumental settlement. It was critical, but it was settled in 1997. I do not believe he has cared about his clients and their interests for a very long time.”

Tina Vasquez headshot

Tina Vásquez

Tina Vásquez is the editor-at-large at Prism. She covers gender justice, workers' rights, and immigration. Follow her on Twitter @TheTinaVasquez.