A federal judge’s ruling presaging the release of the largest number of illegal immigrant mothers and children from U.S. detention centers has erased the last get-tough immigration policy of the Obama administration, leaving the law even more of a mess and authorities with even fewer tools to try to deter another surge of border crossers.
The sweeping decision by U.S. District Judge Dolly M. Gee gives the Obama administration 90 days to object; otherwise, she will order the government to move quickly to release all illegal immigrant children and try to release their parents as well.
Judge Gee also ruled that facilities set up by the Department of Homeland Security to house the illegal immigrant mothers and children who surged across the border last year violate a 1997 agreement and cannot be used.
Judge Gee cited “widespread and deplorable conditions” in the detention centers, which she said include cold cells, a lack of trash cans and constant lighting that can disrupt sleep patterns.
“In light of the voluminous evidence that plaintiffs have presented of the egregious conditions of the holding cells, the court finds that defendants have materially breached the agreement’s term that defendants provide ’safe and sanitary’ holding cells for class members while they are in temporary custody,” Judge Gee said.
Mr. Obama and Homeland Security Secretary Jeh Johnson turned to detention as a major part of their response to the surge, opening several facilities just to hold families together after they were caught crossing the border.
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They held up the use of those facilities as a key ingredient in stemming the flow, which dropped from more than 7,000 in July 2014 to about 4,000 last month.
Mr. Johnson has defended the facilities as humane, but Judge Gee rebuts that claim.
Stung by complaints from immigration activists and congressional Democrats, the Obama administration began to move toward releasing illegal immigrant families as quickly as possible, but Judge Gee’s order would force Homeland Security to go much further and potentially relinquish the facilities it just opened.
“The court’s ruling makes clear that the administration should simply stop locking up children and their mothers in immigration detention facilities,” said Eleanor Acer of Human Rights First, one of the groups protesting the detentions.
Homeland Security spokeswoman Marsha Catron said the department will take stock of its legal options.
“We are disappointed with the court’s decision and are reviewing it in consultation with the Department of Justice. We plan to respond to the court’s order to show cause by Aug. 3,” Ms. Catron said.
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Most of the attention from last year’s surge went to the more than 68,000 children caught at the border who were unaccompanied by parents, but just as big of a problem was the swarm of tens of thousands of children who crossed with parents. Indeed, 38,845 children traveling with parents also were detained.
Federal laws required the unaccompanied children to be processed quickly and released, but the Obama administration had Homeland Security lock up rather than release border crossers with children in an attempt to deter others.
Mr. Johnson has called that policy a success, and the flow of accompanied and unaccompanied children is down substantially this year.
Immigrant rights advocates challenged the legality of detentions and the conditions at the centers, arguing that the children and sometimes their parents were fleeing domestic violence, drug violence or extreme poverty, and should be welcomed as asylum-seekers.
Democrats in Congress have taken up their call and demanded the end of detention of illegal immigrant families.
Mr. Johnson has testified that he has visited the facilities and found them to be humane and successful.
Detention was one of the last strict enforcement policies Mr. Obama had in place. He has announced a deportation amnesty that would cover up to 5 million illegal immigrants and enforcement priorities that, according to a Migration Policy Institute estimate, would set aside more than 4 million others from any danger of deportation.
That means fewer than 2 million of the estimated 11.5 million illegal immigrants in the U.S. are targets for removal.
Judge Gee’s decision is the latest court assertion of new protections for illegal immigrants, likely leading to more releases.
Those rulings have left the already complex immigration law a morass of contradictions.
Even as federal officials argued publicly that the border surge last year was caused by horrible conditions in El Salvador, Guatemala and Honduras, the administration acknowledged in court papers that much of the problem was its own policy of catch-and-release.
Border Patrol agents said many of those caught during the surge came to get what they called “permisos,” or free passes into the interior of the U.S. In fact, the permisos were immigration court summonses issued by immigration authorities giving dates and times to appear for deportation hearings.
But the illegal immigrants viewed the permisos as free passes because they were able to take the notices, disappear and ignore their court dates with little fear of being caught.
Judge Gee rejected the administration’s claim that permisos contributed to the surge, saying the rise and fall of the traffic didn’t appear to be directly connected.
The challenge was the latest chapter in a case that dates back to 1985 and whose big moment came in 1997, when the Clinton administration agreed to what has become known as the Flores settlement, which sets conditions for how illegal immigrant youths can be treated.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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