The decision facing parents was prompted by a June court order
that called for the release of children in federal family detention in light of the coronavirus pandemic. The deadline to let children go is Friday.
"Moms are trying to figure out how their kids are most safe," said Shay Fluharty from Proyecto Dilley, which provides legal services to families at the Dilley, Texas, detention center. "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?"
Families are detained in three detention facilities run by ICE -- Berks in Pennsylvania, South Texas (Dilley) and Karnes County Family Residential Centers in Texas. Children at the facilities range from 1 year old to 17 years old, according to lawyers and advocates who provide legal assistance.
On Monday, a federal judge in Washington, DC, grappled with whether to release families from immigration detention and said a ruling in the case before him would likely not come by Friday, leaving parents to make a decision without knowing if an order might come down the road to release them together.
Here's where the situation stands:
Why is ICE required to release children from family detention?
In late June, Judge Dolly M. Gee of the US District Court for the Central District of California called for the swift removal of migrant children
who are at one of the three family detention centers.
Gee, who oversees implementation of the Flores Agreement which governs care of children in custody, said that given "non-compliance or spotty compliance with masking and social distancing rules," it was imperative to transfer children out of the facilities.
The ruling was part of an ongoing effort to release immigrant children held in detention who are particularly susceptible to the coronavirus.
Immigration advocates and lawyers have expressed concern for months over the potential for spread of the coronavirus given the confined settings at facilities. In a complaint filed to the Department of Homeland Security's Office of Civil Rights and Civil Liberties, four groups that provide legal services warned of a spike in cases at family detention centers and "lack of appropriate precautions and protocols relating to Covid-19."
How many children are in ICE family detention?
As of June 8, there were 124 children in ICE custody, according to Gee's ruling. The ruling applies to children who have resided at the three facilities for more than 20 days.
There are 335 people at the three family detention centers, according to Vanessa Molina, an attorney for the government.
What will ICE do?
The children must be released with their parents or to "available suitable sponsors or other available COVID-free non-congregate settings" with the consent of their parents or guardians, Gee said.
Attorneys in the Washington, DC, case are fighting for families to be released together. "We are significantly opposed to the idea of children being released to a different sponsor when their parents are here in the US. It's like a sanctioned family separation all over again," said Manoj Govindaiah, director of litigation at the Refugee and Immigrant Center for Education and Legal Services.
ICE is unable to comment due to ongoing litigation, said an ICE spokesperson, adding that the agency is in compliance with all federal court orders related to Covid-19.
Attorneys for families in ICE detention filed for a preliminary injunction earlier this month asking US District Court Judge James Boasberg to order the release of migrants from family detention centers, citing safety concerns, such as an inability to socially distance and inadequate coronavirus testing.
Acknowledging Gee's deadline, Boasberg told attorneys Monday that their clients shouldn't expect his decision by Friday. The parents will need to make a decision about what's best for their children and their families, Boasberg said, adding that he hopes to have a decision by early next week.
Vanessa Molina, the attorney for the government, argued Monday against releasing families, saying that ICE is complying with Centers for Disease Control and Prevention guidance, has provided testing and provides detainees with access to medical care in and outside the facilities if needed.
How many cases of Covid-19 are there among detainees in ICE custody?
There are 949 detainees in ICE custody with positive coronavirus cases who are under isolation or monitoring as of July 12, according to ICE
. There are 26 positive cases in Karnes, one of the family detention centers.
Overall, there've been more than 3,000 confirmed cases in custody.