Hundreds of parents in ICE custody are being forced to decide whether to release their children to sponsors or waive their children’s right to be released.

Two court orders from separate human rights lawsuits have forced this choice. In the first decision, Federal Judge Dolly Gee in California demanded that ICE release all of the approximately 120 children in U.S. immigration custody by Monday, July 27. The order requires ICE to release all children who have been detained for more than 20 days because of their increased risk of contracting coronavirus.

Judge Gee issued the order based on the protection afforded to children detainees by the 1997 Flores Settlement Agreement. These protections do not extend to their adult parents. Last Wednesday, a second federal judge in Washington, D.C. denied a motion to release all parents and children together, following ICE’s existing interpretation of the order.

As a result, parents have to decide whether to give up their children or keep them in detention. This “heart-rending choice” is the most recent iteration of the Trump administration’s cruel family separation policy.

“Moms are trying to figure out how their kids are most safe,” Shay Fluharty from Proyecto Dilley, who provides legal services to families at the Dilley detention center, told CNN. “Is it most safe to go to a stranger? Is it most safe to continue to be in detention as the virus is getting closer and closer?”

ICE has reported more than 3,700 diagnosed cases of coronavirus at its facilities. Four detainees and four guards have died as of July 22. ICE detainees are at increased risk for contracting the virus, in part because the agency has largely continued business as usual.

Earlier this month, the New York Times reported that ICE continuing deportations and detainee transfers had spread coronavirus, both domestically and internationally. Since March, ICE has chartered at least 750 domestic transfer flights and 200 deportation flights, shuffling around thousands of people even when they were exhibiting COVID-19 symptoms. The report included descriptions of unsanitary, overcrowded detention centers where personal protective gear was nowhere to be found and social distancing was impossible.

As of July 27, there have been a total of 48 cases of the virus at the Karnes and Dilley family detention centers, both located in Texas, where children are held.

Lawyers with legal-aid groups ALDEA and RAICES say that ICE has effectively ambushed parents with the choice of whether to surrender their children to sponsors, demanding a decision before they were allowed to consult with lawyers.

In cases where no family member in the U.S. is available to sponsor a child, ICE asked parents if they would prefer to put up their children for adoption or send them to foster homes.

“We’ve been calling this ‘Family Separation 2.0,’” says Bridget Cambria, an immigration lawyer at the Berks County Residential Center in Pennsylvania, the third ICE facility that detains children. “It’s a Sophie’s choice, either you stay in a burning building with your child or you give your child away… it’s a false option.”

According to lawyers who represent detained parents, ICE has failed to release all detained children. On Saturday, the Trump administration asked Judge Gee to delay the order to allow for more time, but she refused.

ICE still has the legal authority to release parents along with their children, but the agency has adamantly refused to do so. It remains unclear whether ICE has a plan to implement Judge Gee’s order to release all kids, although the original deadline has passed.

Sources: Mother Jones 7/28/2020; TIME 7/27/2020; CBS News 7/24/2020; CNN 7/14/2020

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