As the Friday deadline loomed for federal immigration authorities to release migrant children detained alongside their parents in facilities where COVID-19 is spreading, the court postponed the deadline at the request of the government and the lead attorney representing detained children.

The July 15 request to extend the deadline came from the Department of Justice’s (DOJ) counsel and Peter Schey, the lead attorney for the Flores Settlement Agreement that provides basic protections and standards of care for detained migrant children. Both parties asked Judge Dolly M. Gee of the U.S. District Court for the Central District of California for a 10-day extension on her order to release migrant children held in the nation’s three family detention centers by July 17.

In her strongly worded June 26 order, Gee wrote that family detention centers “are on fire and there is no more time for half measures,” and that ICE must work to release the children with “all deliberate speed,” either along with their parents or to suitable guardians with the consent of their parents, otherwise known as sponsors. The June 26 order applies to children detained by Immigration and Customs Enforcement (ICE) inside family detention facilities for more than 20 days, in violation of Flores. As of July 16, ICE continues to detain at least 97 children at the family detention centers for longer than 20 days, which does not include their time in Customs and Border Protection custody. 

Gee similarly ordered ICE to make “prompt and continuous efforts” to release detained migrant children in March, April, and May. As of June 8, there were 124 children detained with their parents and guardians across three family detention centers in Texas and Pennsylvania.

Now that Schey and the government’s extension has been granted, detained migrant families will remain in limbo until at least July 27.

Schey and DOJ attorneys requested the extension because they have not come to an agreement on the mechanics of how “binary choice” will be carried out. The protocol will force parents detained alongside their children during the pandemic to choose between remaining detained in unsafe facilities where a deadly virus is spreading, or sending their children away to live with sponsors.

Schey told Prism that if a parent does not wish to have their child released, the child would 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 children to sponsors, Schey said it is “likely” the child will be rendered “unaccompanied” unless they have a non-detained parent to whom they are released. The specifics of how this binary choice will be carried out, including the forms that parents will sign, have not been agreed upon by Schey and the government.  

As Prism reported, Schey has recently come under fire from fellow attorneys who represent detained migrant families, who do not agree with the binary choice being foisted upon parents. Schey has overseen Flores since the case was first filed in 1985, but attorneys and advocates allege that more recently the lead Flores counsel has not acted in the best interests of detained children because he has spent several years advocating for a version of the binary choice protocol that would trigger what they are calling “Family Separation 2.0.”

In response to Schey’s unilateral decision to request the 10-day extension from the court, legal advocates representing detained families with the organizations Refugee and Immigrant Center for Education and Legal Services (RAICES), Proyecto Dilley, and ALDEA collectively emailed Schey, calling the binary choice “coercive” and “sanctioned family separation.”

The legal organizations wrote that they “strongly” objected to any continuance of the July 17 deadline, and that they did not consent to a continuance of the deadline for the detained children’s release, noting that “timely release” is “crucial” to the children’s health, according to the email shared with Prism.

As of July 16, a total of 70 detained children, their parents, and detention center staff have tested positive for COVID-19 at the Karnes County and South Texas Family Residential Centers. Amy Maldonado, an immigration attorney who represents detained families in federal court, said she “strongly disagrees” with Schey’s strategy.

“I believe this is an ethical violation,” Maldonado said. “This [extension] is not in the best interests of detained children and the decision [to request an extension] was made without the consent or knowledge of parents and was made over the express requests of the attorneys representing these families on the ground.”

Jacquelyn Kline, co-founder of ALDEA and an attorney representing families detained at the Berks County Residential Center in Pennsylvania, said none of the family detention centers made “any real effort” to release families before the July 17 deadline. She says it’s a “point of tension” that Schey does not take the concerns of families or their attorneys into consideration before making decisions.

“I don’t think he had to agree or should have agreed to an extension, which just allows ICE to keep delaying. What happens if they still don’t have an agreement in 10 days? COVID is spreading in these facilities and they are just extending the potential for children to get infected,” Kline said. “It does not seem to me to be in the children’s best interest to stipulate to an extension that keeps them in a dangerous situation for an even longer period of time.”

Schey could not be reached for comment.

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.