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‘Family Separation 2.0.’ Parents in ICE Detention Have To Decide Whether to Keep Their Children or Release Them To Sponsors

8 minute read

Lucy turned 2 in isolation. Inside of a cell at the South Texas Family Residential Center—one of three immigration facilities in the U.S. that detains children—Lucy and her mother, Maria, spent the day watching television. They were required to quarantine for two weeks after coming into contact with a guard who tested positive for COVID-19.

Lucy practiced speaking by reacting to what she saw on the screen. “She’d say ‘look mommy, balloons,'” Maria tells TIME in Spanish from the South Texas Family Residential Center. “She saw a commercial of a hamburger and she said ‘mommy, look, bread. Chicken mommy, chicken.'”

Lucy was only about 14-months old when she was first detained at the facility, located in the small town of Dilley, Texas. Lucy’s hair has grown longer, she has learned more words and she’s taken her first steps, all in detention, Maria says. Now at 2 years old, her mother says she’s starting to become more aware of her surroundings and that there is a world that exists outside the gates of detention.

Maria—who spoke under the condition that TIME use pseudonyms to identify her and her daughter because calls are monitored at the detention center, and she feared retribution by immigration officials and that speaking to press could negatively impact her request for asylum—will have to make one of two choices in the next few days: either separate from Lucy and release her to a sponsor, or keep Lucy in detention with her, waiving the girl’s right to be released. Either way, Maria will not be able to leave.

As COVID-19 cases continue to increase across the country, court orders from two different lawsuits have created a situation that lawyers and advocates are calling another form of family separation. In the first decision, a federal judge in California required ICE to release the roughly 120 children in U.S. immigration custody by Monday, July 27. In the second, a federal judge in Washington, D.C. decided on Wednesday to deny a motion to release all parents and children together. Now, parents in Immigration and Customs Enforcement (ICE) detention must decide whether or not to keep their children with them in custody, or to release them out to sponsors.

“We’ve been calling this ‘Family Separation 2.0,'” says Bridget Cambria, an immigration lawyer who represents families at the Berks County Residential Center in Pennsylvania, one of the three facilities that detains children. “It’s a Sophie’s Choice, either you stay in a burning building with your child or you give your child away…it’s a false option.”

For 10 months, Lucy and Maria have been detained at the family detention center in Dilley along with 170 others. The South Texas Family Residential Center has the largest population size of the three family detention centers in the country. As cases of the coronavirus surpass 4 million in the U.S. with no indication of slowing down, lawyers and advocates have been stepping up pressure on the Trump Administration to release immigrants from detention. They say detention puts the detainee’s lives at risk by keeping them in facilities where social distancing is impossible and guards come in and out daily.

ICE has so far diagnosed more than 3,700 cases of COVID-19 at its facilities, including one case at the South Texas Family Residential Center, according to ICE data. At least four employees at the Dilley facility have also tested positive, according to a court opinion written by Judge Dolly Gee in California, the judge who presides over the “Flores” case involving children in detention. At the two other facilities that detain children, 47 cases have been diagnosed at the Karnes County Residential Center in Texas, and zero cases have been diagnosed at the Berks County Residential Center in Pennsylvania.

ICE declined to comment due to pending litigation, but said that “As part of the Department of Homeland Security’s homeland security mission, our trained law enforcement professionals adhere to the Department’s mission and values, and uphold our laws while continuing to provide the nation with safety and security.” CoreCivic, the private company that runs the South Texas Family Residential Center in partnership with ICE, deferred to ICE for comment.

Per a court order by Judge Gee, ICE is required to release all children who have been in detention for more than 20 days by July 27 because of the risk posed by COVID-19. However, Gee’s order does not have jurisdiction over parents. In a separate lawsuit, D.C. District Court Judge James Boasberg on Wednesday decided that a blanket release of all family units is not necessary at this time.

“While the COVID-19 pandemic has disrupted lives throughout our country, in few places has it proved more contagious than in congregate settings like prisons or detention centers,” Boasberg wrote in a Wednesday opinion. “Even assuming the conditions of Petitioners’ confinement violate their due-process rights, they have not yet clearly shown that they are entitled to the extraordinary remedy of blanket release from immigration detention.”

It still remains unclear how ICE will implement Gee’s order to release all kids.

“At this period of time we do not know enough information about how either of those processes would work—either indefinite detention or family separation—for anyone to make an informed and voluntary decision,” says Mackenzie Levy, a staff member at Proyecto Dilley, an organization of lawyers who provide legal services to women and children detained at the South Texas Family Residential Center. “There are a ton of very, very important life-altering considerations that we have received no guidance about from ICE or from class council.”

Maria spoke to TIME before Boasberg’s Wednesday decision. At the time, she was unaware what the future had in store for them, but knew she did not want to see her daughter grow up in a detention center. “Being locked up isn’t a way to live a life,” she adds. “[Lucy] doesn’t know what it’s like to live out there, how it feels to see a city, or streets, or the cars going by. For us that would be something really beautiful to see—we aren’t hurting anyone, we just want to be free.”

Seventeen-year-old Nadia also spoke to TIME from the Dilley detention center under the condition that her true name not be published. Nadia and her mother have been detained together since March.

“Never in my life have I been locked up,” Nadia says in Spanish. “It has cost me a lot. It’s traumatizing and frustrating to be locked up for so long.”

Still, she considers herself one of the more fortunate children detained in the facility. Nadia’s nearly an adult, and though she has stuck by her mother’s side through the duration of their time in detention, she is much more independent than the younger children. “They can’t be separated from their families, they need their mothers,” she says. “And me too, because a mother is always necessary. Nothing compares to the care you get from your mother.”

By the end of June, ICE had conducted mass COVID-19 testing at all three facilities, and both Maria and Nadia’s results were negative. Still, they tell TIME they worry about their exposure to the virus. Guards come in and out of the facility daily, and new detainees are transferred in and out. Living areas are communal, so people eat together, children play together and families share bathrooms.

“Although progress has been made, the Court is not surprised that COVID- 19 has arrived at both the [family residential centers] and [Office of Refugee Resettlement] facilities, as health professionals have warned all along that individuals living in congregate settings are more vulnerable to the virus,” wrote Judge Gee in a June 26 court opinion.

According to lawyers who represent families at the three detention centers, ICE has yet to release children in accordance with Gee’s order.

Should Nadia’s mother decide to have her released to a sponsor, Nadia would likely join her American brothers who are already in the U.S.

“It would be really hard for me to separate from my mother. She’s all that I have. She’s my mother and my father,” Nadia says. “But I’ll add that for all the other children who are younger than me, it would be an even bigger loss. That’s why we’re asking that they free us all together.”

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Write to Jasmine Aguilera at jasmine.aguilera@time.com