A California federal judge on Wednesday denied non-profits’ attempt to join a long-standing class action and intervene on behalf of children detained alongside their parents in family detention centers.

U.S. District Judge Dolly Gee’s decision came after attorneys with ALDEA –The People’s Justice Center and Refugee and Immigrant Center for Education and Legal Services (RAICES) filed a motion to intervene July 20. Attorneys with the non-profit legal organizations alleged the interests of children detained with their parents are “not adequately represented and [are] irretrievably at odds with the inexplicable objective of class counsel” Peter Schey, who has spent decades as lead counsel for the Flores Settlement Agreement, a class action that provides basic protections and standards of care for detained migrant children.

“Given the history of this litigation and the remarkable results of class counsel’s advocacy from the inception of this action 35 years ago through the onset of the pandemic, the court finds that class counsel have provided more than adequate representation,” Judge Gee wrote in her decision.

As Prism exclusively reported, attorneys representing detained families allege Schey has spent years advocating for a “binary choice protocol” that could result in family separation by forcing migrant parents to decide between remaining detained with their child indefinitely, or sending their children away to live with sponsors—government-vetted relatives living in the U.S.

Now that COVID-19 is rapidly spreading in family detention centers, attorneys with ALDEA and RAICES publicly expressed concern the protocol may become a reality, triggering what they’ve been calling “Family Separation 2.0.”

In a statement to Prism, Schey said the proposed intervenors have “entirely misinterpreted” both the terms of the Flores Settlement Agreement and the court’s prior orders enforcing the settlement’s terms.

“Contrary to what they argued to the court, neither we as class counsel nor the court have ever advocated for or endorsed in any way the forced separation of children from their parents. We have successfully fought against forced separation of families for over twenty years,” Schey wrote. “While a parent’s decision to have their child released from detention is a difficult one, we have always believed it’s a decision that solely rests in the hands of parents who are in the best position to decide what’s in their child’s best interest.”

Judge Gee wrote that the critiques made by the attorneys representing detained families “boil down to a disagreement on litigation strategy.”

Jacquelyn Kline, Amy Maldonado, and Carol Anne Donohoe, the attorneys who went public with their concerns about Schey, told Prism they stand by their statements and that court records and the language Schey has been using for years “speaks for itself.”

As Prism previously reported, court transcripts from a January 2017 evidentiary hearing for Flores reflect the attorneys’ assertion that Schey advocated for a “simple process” that would result in family separation.

“[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.

In court transcripts from April 2015, an attorney for the Department of Justice (DOJ) expresses concern over a proposed order from plaintiffs Schey and attorney Carlos Holguín, who has worked with Schey as co-counsel on Flores and at Schey’s legal organization the Center for Human Rights and Constitutional Law for more than 30 years.

“If you look at plaintiffs’ proposed order, it talks about the fact that … the parent could stay with the child or the parent can ask for their child to be released from the facility, none of that is in the Flores Settlement Agreement,” the DOJ’s attorney says. The DOJ’s counsel later says that the outcome of such a protocol would “separate families” and “create uncertainty.”

As of July 30, attorneys representing detained families told Prism they are still unclear on the specifics of how a binary choice protocol will play out for their clients. For example, if parents refuse to engage the binary choice protocol or decide not to release their child from detention without them, is the parent waiving their child’s Flores rights against indefinite detention?

When asked directly, Schey told Prism the question “includes too many misconceptions to answer,” but clarified that no child is subject to “indefinite” detention. In a previous statement to Prism, Schey said 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.

In potential scenarios where parents do release their child to a sponsor, Prism asked Schey about the long-term consequences. For example, are parents giving up rights to their child, can they be deported without their child—and are parents being made aware of any potential long-term consequences prior to deciding whether or not to release their child?

“The parent will discuss the consequences of having their child released or not released with their counsel who will explain the range of consequences either decision may have. This is true with or without the adoption of a written advisal of rights,” Schey wrote. “If a parent is facing imminent deportation, and they wish to have their child released, then the child will most likely not be deported when the parent is removed. If the parent decides to keep his or her child with the parent in detention, then the child will most likely be deported with the parent. All of this is true with or without a protocol establishing a written advisal for parents about their children’s rights. NONE of this comes about because a written advisal of rights is adopted and provided to parents.”

Maldonado said Schey’s responses are “evasive” and “bordering on misleading.”

In prior phone calls with attorneys representing detained families, Maldonado said Schey explained that if parents do not consent to release—even by refusing to sign anything—the children’s detention beyond 20 days, no matter how long, will be treated as complying with the Flores Settlement Agreement, which specifies children should not be detained more than 20 days. Maldonado said that Schey’s proposal for a binary choice protocol also includes the provision that the parents can only change their mind about their child’s custody while the family is detained together.

“In other words, consent to separate means losing all control over your relationship with your child, quite possibly forever,” Maldonado said. “Yet right now, the only alternative to stay together as a family is to remain in a facility with an active, spreading COVID-19 outbreak. That is no ‘choice.’”

In her decision, Gee placed blame for children’s prolonged detention during a pandemic squarely on Immigration and Customs Enforcement (ICE), due to the agency’s “failure to exercise its discretion” to release detained families.  

“Similarly, any specter of family separation arises due to the government’s declination to parole accompanying adults along with minors, not due to specific failures of class counsel,” Gee wrote.

Donohoe said it is a “critical point” that needs to be made “over and over again” that there is no need for the government to detain families in the first place. But the attorney said she is still disappointed in Judge Gee’s decision.

Attorneys that filed a motion to intervene are on-the-ground meeting with children every day, Donohoe said, and their input is “critical.” But with large cases, she said judges see only what’s on paper or what is argued before them. To Gee, Donohoe said, Schey may seem like “a zealous advocate.” To her, he is someone who has “lost the ability” to put childrens’ best interests first.

“At the least, he needs to allow new counsel to intervene and have a full voice. At best, he needs to step aside from a position which—however passionate he may have been when he started—has become in my opinion just a source of revenue for him,” said Donohoe, noting that she no longer represents detained families and has nothing to gain or lose from speaking out against Schey. “In my opinion, ICE are kidnappers and binary choice is the ransom that the government and Schey are negotiating over.”

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