Questions Remain Following Family Detention Ruling

WASHINGTON, D.C. — After a federal judge ruled last week that U.S. Immigration and Customs Enforcement (ICE) must release children held in any of the country’s three family detention centers by July 17 amid the COVID-19 pandemic, questions remain about how ICE will respond.

The ruling, which applies to children who have been held for more than 20 days in the detention centers, impacts more than 120 children currently housed in ICE facilities and is the first time a court has set a firm deadline for such releases.

However, it remains unclear how — or if — ICE will implement the changes, and if family separation, continued family detention or deportation will result.

Potential ways ICE could implement the order include:

1) ICE technically complies with the order but releases children and not parents, resulting in family separation.
2) ICE gives parents the “binary choice” of giving up the Flores rights of their child so they can stay with them in detention or allowing their child to be released to a sponsor, resulting in continued family detention or family separation.
3) ICE releases the children with one or both parents.
4) ICE deports the families before July 17.

Practical, cost-effective solutions that keep families safe and together have been used in the past. Historically, immigration authorities have utilized alternatives to detention (ATDs) for families who are facing immigration court dates or deportation. ATDs like electronic monitoring devices are far more cost-effective than detention and typically see extremely high compliance rates.

The Trump administration terminated a promising ATD pilot program aimed at families in 2017. With overcrowded detention centers becoming hot spots for COVID-19, the administration should look to ATDs rather than detention for these families.

“Last week’s ruling is an important step toward protecting children and families,” said Ali Noorani, President and CEO of the National Immigration Forum. “But it is not a solution, and does not guarantee that these children will be released, or that these families will remain together.

“Here are the questions ICE and the Trump administration need to answer: How will ICE implement this order? Why is ICE underutilizing ATDs amid a public health crisis? What solutions are available that keep families together and protect immigrants — and all Americans — amid this pandemic?”

Additional resources on ATDs and the cost of immigration detention:

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