Last week, a federal appeals court ordered the release of children from immigration detention centers, but that mandate does not apply to their parents.
For the past two years, Central American migrants have come to the United States in droves, fleeing warlike violence in their home countries to reach safety in the States. And for the past two years, the United States government has repeatedly sent those families—including young children and even infants—into detention centers, where they endure prison-like conditions for the chance to plead their cases for asylum. The Department of Homeland Security (DHS) has spent hundreds of millions of dollars on those facilities, despite objections from immigration lawyers, civil rights advocates, and members of Congress.
Last week, a federal appeals court agreed with those objections and ordered that the DHS must end family detention, since it violates legal standards of care for children—including basic necessities like food, clothing, grooming items, medical care, and educational services, among other things. The ruling confirms a decision from last year on a lawsuit brought by the Center for Human Rights and Constitutional Law. So far, children have not been released from facilities.
Denise Gilman, the co-director of the University of Texas's Immigration Law Clinic, told VICE the decision signals "that the current detention regime is unlawful. That has to be the starting point for the government."
And yet, while the decision requires DHS to release children from the detention centers, the judge noted that the ruling "does not require the release of accompanying parents."
"DHS continues to review the Ninth Circuit's decision, which held in part that the settlement does not limit the authority to detain adults who are apprehended at the border with their children," said Gillian Christensen, a DHS spokeswoman, in a statement to VICE. "DHS continues to assess the impact of the appellate decision on its operations."
Now, incarcerated mothers are fearful of a new possibility: being ripped away from their children while they remain in detention.
Alicia has been detained in South Texas Family Residential Center—the largest immigration detention center in the country—since late June, when she fled death threats from gang members in Honduras. (She asked us not to publish her real name out of safety concerns.) She brought her two-year-old son with her, and now, she's distraught about being separated from him.
"I heard on the news that kids don't have to be in prison anymore, but that mothers are going to have to fight our cases here," Alicia told me, relaying rumors from a Spanish-language TV station. "My son is my life and to think that one day they could separate us makes me feel awful."
Alicia said her mother lives in the United States and could take custody of her son, but that her mother "doesn't even know the boy because they've never met in person" and she's worried about what could happen if they become separated.
"The administration started this policy and they can end it." — Karen Lucas
Whether or not families will be split up remains in question, and just because the court decision allows adults to stay in detention centers does not mean the government wouldn't free them to care for their children, according to Ian Philabaum, who works with the CARA Family Detention Pro Bono Project, which offers legal representation and advocacy to immigrants in family detention centers.
"The immigration environment is so discretionary and interpretations can vary greatly, but under no circumstance would it make sense to us to separate families," Philabaum told VICE. "The judge did not say the whole family had to be released, but [the decision] doesn't say the family is not going to be released."
Even still, the threat of possible separation has made many families so anxious that some have stopped preparing their asylum cases. In order to be considered for asylum, an immigrant must pass a "credible fear interview," which proves they would face significant danger if they returned to their home country. Philabaum said many mothers are now focusing on making arrangements for their children rather than preparing for this interview, which is the key to winning asylum.
Christensen, the DHS spokeswoman, declined to comment further on the agency's plans. But multiple attorneys, advocates, and even Congress members have insisted that only one option seems reasonable: letting Central American families pursue asylum without detention.
"We have argued from the very beginning that the administration started this policy, and they can end it," said Karen Lucas, associate director of advocacy for the American Immigration Lawyers Association, in an interview with VICE. "There are many tools at their disposal to keep families together, and [there are] alternatives to detention in cases where there are demonstrated flight risks."
Lucas emphasized that the DHS should also change the way it processes these families' immigration cases. Since 2014, the DHS has placed Central American families on a fast-track for deportation—called expedited removal—which was originally meant to deter more individuals from migrating. (So far, it has not been an effective deterrent.) Expedited removal is designed to deport immigrants as quickly as possible unless they request and pass a credible fear interview. But immigrants must wait days or weeks to take this interview, and cannot leave detention until they have passed the interview and paid a bond. According to immigration attorneys, the process ends up taking longer and causing more strain on the facilities.
"The best way to get the timing down [of detaining families] is to get rid of expedited removal and instead put families into full on proceedings in immigration court," said Gilman, who added that "children have a right both to be released from detention and to maintain family unity with their mothers under [Texas] state law."
While the court decision seems like a victory to immigration advocates, many are holding their breath to see if the government will indeed keep parents incarcerated without their kids. Democrats in Congress are pressuring the DHS to avoid this scenario, and Zoe Lofgren, a US representative, told VICE she had already communicated her recommendation "with the department at the highest level."
"Parents and children should be released, which would be under a statute that already permits ICE to release people pending their hearings," Lofgren said in a phone interview. "I've learned never to predict, but I cannot believe the Obama administration would rip children out of their mothers arms and put them in foster care."
Follow Meredith Hoffman on Twitter.