Our Work Is Far From Over: What Judge Gee’s Ruling Means for Family Separation

July 7, 2020 | Texas

By Cheasty Anderson, Director of Immigration Policy and Advocacy

Last week the world was momentarily abuzz with news that federal Judge Dolly Gee had ordered the release of children held in family detention centers. This is wonderful news, in one sense, as advocates (CDF-TX among them) have long fought for this end. But this is not a straightforward announcement, by any stretch. There are risks inherent in the process, and we are worried that in the ruling there is also a roadmap by which the Administration might exploit loopholes to again enforce family separation. There are some cautionary notes to offer as well – the world of immigrant detention is murky and complicated, and there were some understandable misunderstandings about what this ruling does and does not accomplish, and we do not want people to believe that our problems are at their proverbial end.

Judge Gee’s ruling was the latest in a series of decisions explaining how to enforce the Flores Settlement agreements, the legal decision from 1997 that gave us the rules we try to make the Administration live by today. These include the 20 day limit on holding children in detention, the regulation of medical and educational access, and others. Because the Flores case dealt only with the detention of children in family detention centers, the ruling only applies to children in family detention centers. That is to say, Judge Gee can order the release of the detained children in Karnes, Dilley, and Berks, but she cannot order the concurrent release of those children’s parents. Nor can she order the release of the children classified as “unaccompanied,” who are held by the thousands in ORR facilities and shelters.

So the concerns here are two-fold: first, we must demand that these children be released with their parents; and second, we must continue to push for the release of children detained in ORR facilities to family members and sponsors, as well as push to end the practice of detention for immigrants in total. ICE has already, back in May of this year, attempted to coerce parents into “authorizing” family separation. (Read more about that here.) Parents refused, and advocates forced ICE to stop. And Judge Gee’s ruling last week, in fact, acknowledged that possibility when she ordered them released “either with their parents or to a suitable guardian with the consent of their parents.”

The fear today is that ICE will once more use this ruling to try and separate families. It is all too easy to imagine ICE, with its lack of transparency, telling families that a judge had ordered that the children be taken, and the parents must consent. We must fight long, hard, and loudly to prevent this from happening. Legal advocates at RAICES and the Dilley Pro Bono project are working to head this off, and dozens of other organizations are planning public actions here in Texas to raise public awareness.

The second concern is that people misunderstood this ruling to mean that Judge Gee was ordering the release of all children, and this is not the case. Thousands of “unaccompanied minors” (a designation that can mean a range of things) still live in ORR facilities when they could be released to extended family, fictive kin, or community-based shelters.

We must fight for the release of all children from federal detention, full stop. We must fight for an end to the practice of detaining asylum seekers, full stop. We must fight to end the contracts with private prison corporations that make a few people rich beyond measure while the poorest and most vulnerable people in the world suffer. Full stop. They cannot fight for themselves. It is up to us.

I often say that we must keep looking, because if we look away, they will win. A partial victory, full of potential pitfalls and due only to a global pandemic, must not be the reason we heave a sigh of relief and move on to the next project that needs fixing.