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House Democrats Demand ICE End New "Binary Choice" Policy Amidst COVID-19 Pandemic

Washington, May 21, 2020

Washington, D.C. – Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY), Subcommittee on Immigration and Citizenship Chair Zoe Lofgren (D-CA), Congressional Hispanic Caucus Chair Joaquin Castro (D-TX),Congressional Black Caucus Chair Karen Bass (D-CA), Congressional Asian Pacific American Caucus Chair Judy Chu (D-CA), and Congressional Progressive Caucus Co-Chairs Pramila Jaypal (D-WA) and Mark Pocan (D-WI), led 67 House Democrats in sending a letter to Department of Homeland Security (DHS) Acting Secretary Chad F. Wolf and U.S. Immigration and Customs Enforcement (ICE) Acting Director Matthew T. Albence demanding an end to the Administration's apparent efforts to separate families in the midst of the COVID-19 global pandemic. This new "binary choice" policy forces families held in ICE detention centers to make an unimaginable choice: remain detained or separate parents from their children.

In their letter, the Members wrote, "Millions of families in this country are already suffering immensely from the physical and economic effects of the COVID-19 pandemic. The Administration must stop using this public health crisis as a means for implementing unlawful and inhumane immigration policies. In these extraordinary times, human suffering need not be compounded by locking up families or instilling fear in the hearts of migrant parents."

The letter was also signed by Representatives Ami Bera, M.D. (D-CA), Earl Blumenauer (D-OR), Julia Brownley (D-CA), TonyCárdenas (D-CA), David N. Cicilline (D-RI), Wm. Lacy Clay (D-MO), Lou Correa (D-CA), Jason Crow (D-CO), Susan A. Davis (D-CA), Peter A. DeFazio (D-OR), Rosa L. DeLauro (D-CT), Suzan K. DelBene (D-WA), Val B. Demings (D-FL), Ted Deutch (D-FL), Eliot L. Engel (D-NY), Adriano Espaillat (D-NY), Marcia L. Fudge (D-OH),Jesús G. "Chuy" García (D-IL), Sylvia R. Garcia (D-TX), Jimmy Gomez (D-CA),Raúl M. Grijalva (D-AZ), Deb Haaland (D-NM), Alcee L. Hastings (D-FL), Sheila Jackson Lee (D-TX), Hakeem Jeffries (D-NY), Henry C. "Hank" Johnson, Jr. (D-GA), Marcy Kaptur (D-OH), Joseph P. Kennedy, III (D-MA), Ro Khanna (D-CA), Ann Kirkpatrick (D-AZ), Ann McLane Kuster (D-NH), Barbara Lee (D-CA), Ted W. Lieu (D-CA), Alan Lowenthal (D-CA), Carolyn B. Maloney (D-NY), James P. McGovern (D-MA), Gregory Meeks (D-NY), Grace Meng (D-NY), Debbie Murcarsel-Powell (D-FL), Grace F. Napolitano (D-CA), Joe Neguse (D-CO), Eleanor Holmes Norton (D-D.C.), Alexandria Ocasio-Cortez (D-NY), Ilhan Omar (D-MN), Chellie Pingree (D-ME), Ayanna Pressley (D-MA), Mike Quigley (D-IL), Jamie Raskin (D-MD), Lucille Roybal-Allard (D-CA),Linda T. Sánchez (D-CA), Mary Gay Scanlon (D-PA), Jan Schakowsky (D-IL), Albio Sires (D-NJ), Adam Smith (D-WA), Darren Soto (D-FL), Jackie Speier (D-CA), Thomas R. Suozzi (D-NY), Eric Swalwell (D-CA), Mark Takano (D-CA), Mike Thompson (D-CA), Dina Titus (D-NV), Norma J. Torres (D-CA), David Trone (D-MD), Juan Vargas (D-CA), Filemon Vela (D-TX), Peter Welch (D-VT), and Frederica S. Wilson (D-FL).

Full text of the letter can be found below and here:

May 21, 2020

Acting Secretary Chad Wolf
U.S. Department of Homeland Security
500 12th St. SW
Washington, D.C. 20536

Acting Director Matthew T. Albence
U.S. Immigration and Customs Enforcement
500 12th St. SW
Washington, D.C. 20536

Dear Acting Secretary Wolf and Acting Director Albence:

We write to express our concern over reports that the Administration is haphazardly implementing a new policy in family detention centers, creating the appearance that it is again pursing a policy of family separation during the COVID-19 global pandemic. Service providers at three Immigration and Customs (ICE) detention facilities—the Berks, South Texas (Dilley), and Karnes County Family Residential Centers—report that parents are being presented with an unimaginable choice: either to remain in detention with their children or to relinquish their children into the custody of the Office of Refugee Resettlement (ORR) or a suitable custodian. Further, ICE appears to have approached parents, including those represented by counsel, with this choice without notifying counsel or any organization that could have provided legal assistance, creating additional confusion and fear among the families. The Department of Homeland Security (DHS) must immediately provide a detailed legal explanation for this new policy, and cease implementation until such explanation is provided to families in detention, counsel, and to Congress.

The Flores agreement requires DHS to release minors from its custody “without unnecessary delay,” with exceptions only for minors who pose a threat to others or are likely to abscond.[1] The Flores agreement further specifies that minors be released to the “least restrictive setting,” with priority given to a parent or other family member.[2] Notwithstanding its binding nature, this Administration has an unfortunate track record of repeatedly violating the Flores agreement, including by engaging in the long-term detention of families with children.[3]In September 2019, the federal judge overseeing the agreement permanently enjoined the Administration’s attempt to withdraw from the agreement by issuing regulations that would permit indefinite detention of migrant children and their parents.[4] In issuing her decision, Judge Gee reminded the Administration that “[t]he Flores Agreement is a binding contract . . . [The Administration] cannot simply ignore the dictates of the consent decree merely because [it] no longer agree[s] with its approach as a matter of policy.”[5]

On April 24, 2020, in response to the COVID-19 global pandemic, Judge Gee ordered ICE to conduct individualized release assessments for children in ICE custody.[6] Reports suggest that ICE has interpreted Judge Gee’s order as grounds for approaching parents and asking them to choose between remaining in detention or releasing their children to suitable sponsors.[7] Unfortunately, the agency’s chaotic implementation of Judge Gee’s order led advocates and families to believe that the Administration was moving forward with its long-contemplated “binary choice” policy, which uses the threat of an illegal action—indefinite family detention—to force another immoral action—family separation.

Millions of families in this country are already suffering immensely from the physical and economic effects of the COVID-19 pandemic. The Administration must stop using this public health crisis as a means for implementing unlawful and inhumane immigration policies. In these extraordinary times, human suffering need not be compounded by locking up families or instilling fear in the hearts of migrant parents.

Given the gravity of the reports mentioned above, we request responses to the following questions not later than May 28, 2020.

1. Is the Administration forcing migrant parents to choose between waiving their children’s rights under the Flores agreement and allowing their children to be taken into ORR custody (“binary choice” policy)? If so, at which ICE Family Residential Centers is this policy being implemented?

2. If any iteration of a “binary choice” policy is being implemented, please explain how it comports with the Administration’s legal obligations under Flores. Please also provide any memoranda, internal guidance, or draft regulations related to such a “binary choice” policy or any similar policies.

3. Please provide a detailed explanation as to the Administration’s understanding of its legal obligations under Judge Gee’s April 24, 2020 order.Does ICE believe that Judge Gee's orders requires parents to decide whether to waive their or their children’s rights under the Flores agreement, or allow their children to be released separately to a suitable custodian? Did ICE consider other means of implementing Judge Gee's order?

4. Did ICE personnel, on May 14, 2020, approach parents in Family Residential Centers with a document for them to sign or initial? What was the purpose of this document? Why were parents asked to sign or initial the document? What were such signature or initials intended to convey? Please provide a copy of this document.

5. Did ICE personnel approach parents who were known to be represented by counsel? If so, did ICE notify counsel of record, provide a way for counsel to participate in-person or through electronic means of communication, or otherwise provide a meaningful opportunity for detainees to contact their counsel? If not, why not?

6. Please provide data, disaggregated by nationality, on the number of migrant parents who have been subjected to a “binary choice” policy. Please provide data, disaggregated by nationality, on the number of children removed from ICE custody pursuant to this policy.

Thank you for your attention to this matter. We look forward to your prompt response.

Sincerely,

[1] Stipulated Settlement Agreement, Jenny Lissette Flores v. Reno, Case No. 85-4544-RJK, ¶ 14. (C.D. CA 1997) [hereinafter “FSA”] (Expeditious release is only excused when detention is “required either to secure [the child’s] timely appearance before the INS or immigration court, or to ensure the minor’s safety or that of others.”).. (Expeditious release is only excused when detention is “required either to secure [the child’s] timely appearance before the INS or immigration court, or to ensure the minor’s safety or that of others.”).
[2] Id.
[3] See e.g. Flores v. Sessions, 2:85-cv-04544, Dkt. No. 363 (C.D. Cal., June 27, 2017) (finding that immigrant children were routinely held for longer than 20 days in unlicensed ICE family detention facilities in violation of the Flores settlement, and that children and adults were being held in unsafe conditions).
[4] Maria Sacchetti, Federal Judge Blocks Trump Administration From Detaining Migrant Children For Indefinite Periods, Wash. Post (Sept. 27, 2019), https://www.washingtonpost.com/immigration/federal-judge-blocks-trump-administration-from-detaining-migrant-children-for-indefinite-periods/2019/09/27/49a39790-e15f-11e9-b199-f638bf2c340f_story.html.
[5] Flores v. Barr, 2:85-cv-04544, Dkt. No. 688, 24 (C.D. Cal., Sept. 27, 2019).
[6] Id., Dkt. No. 784, 18-21 (Apr. 24, 2020).
[7] The Administration’s filings in the Flores case show that parents were presented with this option. See id., Dkt. No. 788-1, 10 (May 15, 2020) (May 2020 interim report submitted by ICE, denying parole on basis that "Parent Does Not wish to Separate”).

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