Letter to the Hon. Chad Wolf, Acting Secretary of the Dept. of Homeland Security, and the Hon. Matthew Albence, Acting Director of Immigration and Customs Enforcement - House Democrats Demand ICE End New "Binary Choice" Policy Amidst COVID-19 Pandemic

Letter

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 Floresagreement, or allow their children to be released separately to a suitable custodian? Did ICE consider other meansof 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.