The federal agency that houses migrant children may no longer require its director’s signature before releasing children from secure detention facilities, according to an order recently issued by a federal judge.
The ruling involves the same agency that has been responsible for housing thousands of children separated from their parents at the U.S.-Mexico border in recent weeks.
But this case centers on a different form of family separation, one that predates the Trump administration’s “zero tolerance” policy for border crossers: one in which children already living in the United States are taken from their families and placed in federal custody. This practice had been rare until last year.
The New York Civil Liberties Union sued the Office of Refugee Resettlement over that policy in February on behalf of a 17-year-old who fled gang violence in El Salvador and had been living with his mother in Long Island. After local police accused him of making a gang sign at school and having gang tattoos, he was arrested by federal investigators and spent seven months in federal custody, including six weeks in a jail-like lockup in Virginia. (Despite the fact that, according to his lawyers, he has no tattoos.)
That case is ongoing, but on Wednesday, U.S. District Judge Paul Crotty handed down an order undoing one of the agency’s new policies. The resettlement agency, Crotty said, cannot require the director’s signature before releasing children from its secure facilities.
“We hope that today’s decision will help children get out of custody faster and eliminate one tool that this administration has used to further traumatize the children in its care,” NYCLU attorney Paige Austin said in a statement.
Officials with the agency offered only the following response: “As a matter of policy, the U.S. Department of Health and Human Services does not comment on matters related to pending litigation.”
Since June 2017, the Health and Human Services Department’s Office of Refugee Resettlement has required that its new director, Scott Lloyd, sign off on any order to release a child from its medium- and high-security settings. The policy change happened hours after Lloyd was appointed to the job, the same whirlwind time in which he was visiting pregnant minors in his agency’s custody to discuss alternatives to abortion.
The agency can hold a maximum of about 85 youth in three secure facilities under contract with local officials – two in Northern Virginia and one in Yolo County, California. These places are, Crotty wrote, “in many ways akin to juvenile jails.” The agency also places children in 10 privately run medium-security facilities it calls “staff-secure.”
Children in these facilities have no set release date, but federal law and a major court settlement require that minors be placed in the “least restrictive setting” appropriate and be released to their families “without unnecessary delay.”
Giving Lloyd sole authority over release decisions “has substantially increased the time” it takes to place kids back with their families, Crotty wrote in his order. Children now spend about 35 extra days locked up waiting for Lloyd to let them go.
“Under a policy of his own making,” Crotty wrote, “Lloyd has unfettered discretion to approve, deny, or request additional information, unguided by any rule or fixed set of criteria, giving him unrestricted power to rule over the fate of vulnerable children.”
Simon Y. Sandoval-Moshenberg, who directs the immigrant advocacy program at the Legal Aid Justice Center in Virginia, has sued on behalf of three minors in secure facilities to have their placement reconsidered. He said Wednesday’s court order should remove one major roadblock to getting kids released, though there are still deeper challenges.
“It will make it much easier to get kids out of ORR (Office of Refugee Resettlement) detention where there’s a sponsor who’s willing and able to sign them out,” he said. “What it doesn’t do anything about is the problem of ORR dissuading people from stepping up to sponsor in the first place, through their information sharing” with U.S. Immigration and Customs Enforcement.
That information-sharing agreement, in place at least since May, gives immigration officials access to details about sponsors who accept custody of minors – potentially putting parents at greater risk of deportation for coming forward to get their own children. It’s just another of the many swift changes the Trump administration has made in the treatment of migrant children.
In his order, Crotty alluded to that point and the controversies that suddenly have surrounded the small resettlement agency. Crotty’s order referenced stories by Reveal from The Center for Investigative Reporting that exposed a policy of drugging children against their parents’ wishes at one of the agency’s contract shelters, a Texas facility called the Shiloh Treatment Center.
“To be clear, this lawsuit does not deal with the Department of Homeland Security’s new policy of separating children from their undocumented parents at the border. Nor does it deal with apparent loss of contact with 1,500 UAC (unaccompanied alien children) under its supervision. Nor the alleged routine and forcible administration of a range of drugs at an ORR-funded facility. Nor the alleged practice of detaining and transporting UAC to detention facilities without notifying their parents or lawyers. Nor the alleged employment of a psychiatrist that has treated children without board certification for nearly a decade. Rather, this lawsuit challenges only the process for placing UAC in the most appropriate setting.”