After immigration attorneys went public with allegations that the lead counsel tasked with defending detained children has spent years advocating for a protocol that would trigger family separation, the attorneys are now requesting that a court allow them to join the lawsuit on behalf of vulnerable children who are detained alongside their parents.

Immigration attorneys with Aldea –The People’s Justice Center and Refugee and Immigrant Center for Education and Legal Services (RAICES) filed a motion to intervene Monday night on behalf of three asylum-seeking children detained across the nation’s three family detention centers in Texas and Pennsylvania. The children include B.L.N., who will turn two years old next month and is detained with both of his parents at the Berks Family Residential Center; D.F.L.G., a one-year old who is detained at the Karnes County Residential Center with his parents; and W.B., an 8-year-old who is detained alongside her mother while being treated for tuberculosis at the South Texas Family Residential Center.

According to court documents, the interests of the three children and the larger class of approximately 124 children currently detained with their parents are “not adequately represented and [are] irretrievably at odds with the inexplicable objective of class counsel,” said Peter Schey, the attorney who has spent decades representing thousands of detained children as part of the Flores Settlement Agreement that provides basic protections and standards of care for detained migrant children. 

Specifically, the nonprofit legal organizations that filed the motion are requesting that the court grant them the ability to intervene so that they can protect the interests of detained children in the enforcement of Flores, as well as address Schey’s adequacy as class counsel and seek the appointment of co-counsel to work alongside Schey, in hope that this would better represent the interests of children in family detention centers.

In light of the pandemic, on June 26 Judge Dolly M. Gee of the U.S. District Court for the Central District of California ordered Immigration and Customs Enforcement (ICE) to release detained children with “all deliberate speed” by July 17. In the weeks since the order, Schey has actively worked with ICE to develop a “binary choice” protocol waiver for detained parents, forcing them to choose between remaining detained indefinitely with their children in facilities where COVID-19 is rapidly spreading, or releasing their children to family members in the U.S., triggering a separation.

As Prism exclusively reported, attorneys and advocates allege that Schey has pushed for a similar protocol since at least 2014 when the Obama administration expanded family detention, but it is now coming to fruition because of the pandemic.

Just before Gee’s July 17 deadline, Schey and the counsel for the Department of Justice requested a 10-day extension that would allow Schey and the government to finalize the binary choice waiver. Gee granted the request, which means children will remain in limbo and detained until at least July 27. The attorneys behind the motion to intervene are also asking the court to reconsider the extension and address Schey’s waiver protocol.

According to the court documents filed Monday, Schey’s waiver protocol has moved forward despite objections from attorneys on-the-ground who represent detained families. The attorneys also allege the terms of the waiver that Schey is developing with the government have remained a “secret” to them and have not included input from child welfare advocates or experts on the “profound harm of separation.”

“The attorneys…have voiced their strong objections repeatedly and directly to [Schey],” the motion to intervene reads. “[Detained children] are being offered the ‘option’ of either separating from their parents, which is well-documented as causing life-long trauma or extended detention, which is also well-documented as causing life-long-trauma, in addition to exposure to a deadly virus.”

Children and their parents are facing dire conditions in family detention centers. More than a dozen have tested positive for COVID-19 inside of family detention centers and in response to the pandemic, ICE has implemented measures that essentially put families on lockdown in settings already considered restrictive and harmful to children’s health and well-being.

According to one attorney’s declaration filed with the motion to intervene, ICE now requires all families detained at Karnes to remain in “quarantine isolation” as long as they are at the facility, and children “are required to stay in their cells for all but thirty minutes every day.” These practices essentially amount to young children, some of whom are just toddlers, being placed in solitary confinement.

Another declaration outlines the larger questions lingering over Schey’s proposed binary choice protocol: Do detained children have to be separated from their parents in order to be safe? Do detained children have to accept indefinite detention in order to preserve their right to remain in the care and custody of their parent? According to Shalyn Fluharty, the answer according to the Flores Settlement Agreement and the Constitution is “no.”

Fluharty is an attorney with Proyecto Dilley, an organization that provides free legal services to mothers and children who are detained at the South Texas Family Residential Center in Dilley, Texas. In her declaration, the attorney wrote that the procedures Schey has negotiated with the government “to implement a family separation policy in the midst of a global pandemic,” defy the terms of Flores, and “place children at great risk of harm.”

Schey said in an emailed statement to Prism that he respects the proposed intervenors’ views and hopes the court fully considers them.

The lead Flores counsel also said that the court has stated for several months that “it believes ICE must adopt procedures to inform parents detained with children about their children’s rights under the Flores settlement,” something he said ICE has refused to do.

“The result has been that no children have been released from custody by ICE pursuant to the terms of the settlement agreement,” Schey wrote. “The binary choice parents have is not caused by the settlement, but rather by the Trump administration’s policies which have lowered the asylum credible fear approval rate from about ninety percent to about ten percent, which means that this year far fewer families are being released together.”

The Flores Settlement Agreement does give parents the right to keep their children with them or to have them released to close relatives. Schey said that while “a great majority” of parents want to keep their children with them, a small number, “especially if they have older children and are facing imminent deportation to countries where their children’s lives are in danger,” may prefer to have their children released to close family members.

“The court believes the parents have the right to be informed about their options and that they are in the best position to determine what’s in their children’s best interest,” Schey wrote. “Plaintiffs agree that while the decision is a difficult one, it is one that parents, not ICE or the court, must make.”

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