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As the United States District Court for the Central District of California prepares to hear arguments on September 4 in the case of Flores v. Barr on the enforcement of the Flores Settlement Agreement during COVID-19, international human rights organizations Amnesty International USA and Human Rights Watch have filed an amicus brief urging the Court to do everything within its power to safeguard the best interests of the children it its custody and mitigate the harms flowing from the government’s policies. 

Denise Bell, the researcher for refugee and migrant rights at Amnesty International USA, said:

“The government had an opportunity to pursue humane treatment of the families it continues to detain, despite a global pandemic. Instead, it has failed to provide families in its care and custody protection against COVID-19, presenting families with an impossible ‘choice’ between detention or  family separation. The government is doubling down on cruelty, when it has the power to release families together. Families and children must not be subjected to trauma under the government’s watch for one minute longer.”

Clara Long, senior researcher in the US Program at Human Rights Watch, said: 

“The US government is needlessly pursuing a ‘choice’ between separating or detaining children, which is designed to inflict suffering and is in violation of its primary obligation to protect their best interests. Detention alternatives, in which children and parents are released together under a program of supervision and support, can satisfy the government’s interest in making sure people show up to immigration proceedings without the devastating harms of either option.”

In the amicus brief, the organizations state that throughout the litigation, the government has failed to honor its commitment to the best interests of the child and has sabotaged it instead, choosing the path most destructive to the children’s best interests by presenting parents with a binary “choice” of separation or continued detention. In order to honor the best interests of the child and preserve family unity, the government should promptly release families together. The organizations also place the onus on the government to explain why it refuses to exercise its discretion to release parents with their children from custody during the ongoing COVID-19 pandemic, particularly as it is well-established that detention is never in the best interests of a child. 

Amnesty International USA and Human Rights Watch urge the court to adopt steps to: require the government to document efforts to release parents with their children, and include the rationale for not releasing parents with their children; require the government to provide a robust know-your-rights advisal that is disseminated to all Class Members through multiple means, with the input of legal service providers working with families in detention, other service providers, and NGOs with expertise in the issues; and require a third-party expert to conduct an evaluation to determine the best interests of each child.

Background and Context

In August, Amnesty International USA and Human Rights Watch, as part of a coalition of organizations, submitted a Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS) and the Immigration and Customs Enforcement (ICE) to uncover why the government has refused to release about 150 asylum-seeking families from family detention centers during the COVID-19 pandemic. Some families have been detained in ICE custody for over 11 months.

In July, 120 NGOs advocating for immigrant and refugee rights, including Amnesty International USA and Human Rights Watch, called for ICE to free all families being held at family detention centers, documenting how family separation produced by coercive “choice” violates multiple human rights, including the right to family unity, the right to liberty, and the requirement to prioritize the best interests of the child.

In May, Amnesty International USA launched a briefing, “Family Separation 2.0: You aren’t going to separate me from my only child”, documenting how ICE has weaponized its public health response to COVID-19 to punish and deter people seeking safety.

In 2018, Amnesty International documented the effects of the Trump administration’s so-called “zero-tolerance” policy, forcibly separating thousands of asylum-seeking families, in order to deter and punish those seeking safety in the United States. Most of the families Amnesty International interviewed were separated without being informed of why. In some of the cases documented by Amnesty International, the practice of family separations satisfied the definitions of torture under both United States and international law. The human rights organization called on the Department of Justice to initiate a criminal investigation into the practice of family separation and the harm it caused, holding accountable all those who authorized it.

Media contact: Mariya Parodi, [email protected]