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Immigration Law

Negotiations on Detention of Refugee Moms, Kids Divide Advocacy Groups

"The Obama administration has conceded that it must curtail long-term detention of migrant mothers and children. But officials may have to go even further if government lawyers agree to a confidential proposal that would limit the detention of most parents and children to less than two weeks.

In many cases, the period would be less than 24 hours.

Still, some hard-line advocates say the proposal, prepared by lawyers for detained mothers, doesn’t go far enough, lacks clarity and legalizes what, they say, is currently illegal – the practice of locking up migrant children. They fear the mothers’ lawyers have forfeited too much in their opening position and that the proposal will likely be watered down in further negotiations.

The confidential proposal provided exclusively to McClatchy is at the center of secret negotiations in a high-stakes federal court battle over how and when mothers and children can be detained as their asylum cases make their way through the courts. That process can take years.

The case is all about how long children can be held in detention. ...

... McClatchy shared the mothers’ proposal with a handful of lawyers following the case. Their wide-ranging reactions illustrate a divide in the advocacy community over how to address an urgent humanitarian need without weakening existing protections from a 1997 agreement, known as Flores v Meese.

Stephen Yale-Loehr, an immigration professor at Cornell Law School, said that while the proposal would not end family detention, it would cut dramatically the amount of time most mothers and children could spend in a facility, from over a year to less than 12 days. Many would be released within 24 hours, he said.

“If this stipulation were to be agreed to by the federal government, it would be a huge win for the plaintiffs,” Yale-Loehr said. ...

... New York immigration attorney Bryan Johnson sees problems with the proposal – especially since it was more of a starting point for contentious negotiations.

Johnson, who was a consultant in the Flores litigation until his termination for releasing the judge’s April 24 confidential ruling, said the proposal cedes too much power to the federal government, which is operating in clear violation of the judge’s ruling on Flores while negotiations have continued. The proposal, he said, would allow that to continue, and while the detention times might be shorter, the government could get around the proposals’ limitations by taking a harder line when considering if asylum applicants truly fear persecution in their home countries. Johnson also provided the most recent proposal.

“As long as these places remain open there is going to be mothers and children detained for long periods of time,” Johnson said Friday. “And they’re going to be harmed and they’re going to be deported wrongly.” ...

... Jonathan Ryan, executive director of the San Antonio-based Refugee and Immigrant Center for Education and Legal Services, perhaps the most aggressive grassroots organization fighting family detention.

But he said the language can be interpreted in multiple ways. And it doesn’t resolve the systematic problems he sees with detentions. Families can still be separated. And an enforcement agency shouldn’t be in charge of both the care of mothers and children while at the same time determining the merits of their claims to remain in the country.

“I only see in these 20-plus pages a potential pathway further into the woods and not into the clear light of day where children refugees, families, simply don’t belong in lockup of any type for any amount of time,” he said." - Franco Ordoñez, McClatchy DC, June 26, 2015.