The 75-page brief, filed with the 9th U.S. Circuit Court of Appeals, argues that a federal judge wrongfully expanded a nearly two-decade-old agreement on the detention of children by ruling that it also protected migrant children who were traveling with their parents.
Deputy Assistant Attorney General Leon Fresco argued in the government’s filing that the original agreement was intended to “settle a lawsuit involving only unaccompanied minors.” “Nothing in the agreement indicates that the government intended to unilaterally surrender its statutory detention authority over accompanied alien minors and their adult alien parents,” he wrote.
U.S. District Judge Dolly Gee in Los Angeles ruled last summer that the Obama administration can’t detain children, even with their mothers, in secure facilities built to house adult prisoners. She also said it was inappropriate to hold a child and accompanying parent unless there was a flight or safety risk.
The judge found it “astonishing” that immigration authorities had adopted a policy requiring such an expensive infrastructure without more evidence that it would be compliant with the decades-old agreement.
The government responded that it needs every tool available to uphold the government’s constitutional authority to detain apprehended migrant families at the border, including through the use of family residential centers.
The Obama administration revived the practice of family detention after nearly 70,000 families rushed the southern border fleeing poverty and violence in Central America. At the beginning of the summer, Fresco points out, more than 10,000 families were being apprehended each month.
The administration responded by opening four family detention centers. It currently operates three centers in Karnes City and Dilley, Texas and Berks County, Pennsylvania. After the facilities were opened, detentions dropped 42 percent, Fresco said in his filing.
Since Gee’s decision was implemented in October, the numbers have gone up again. Family apprehensions were 187 percent higher in the last three months of 2015 compared to 2014.
The facilities have been the subject of intense public and media scrutiny by Congress and media outlets. McClatchy has reported on allegations of poor conditions and mistreatment. But U.S. Immigration and Customs Enforcement officials say the detainees are well cared for.
The administration’s decision to appeal has infuriated advocates fighting family detention. Joanne Lin, ACLU legislative counsel, said in September — when the administration first announced its intentions to appeal — the move “dispels any hope that the Obama administration will end family detention on its own, or the practice of placing families in expedited removal.”
Copyright 2016 McClatchy Washington Bureau
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