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Court Orders Immediate Release of Detained Immigrant Children, But Not Their Parents

In a ruling earlier this week, a federal appeals court ordered the Department of Homeland Security to immediately release undocumented immigrant children held under detention for crossing the border unlawfully. The 9th Circuit Court of Appeals in San Francisco ruled that detaining migrant children for extended periods violates a 19-year-old legal settlement, which ordered immediate release after processing. Government lawyers responded by arguing that the settlement applied only to immigrant children who had crossed into the United States without being accompanied by adult relatives.

However, the ruling also states that immigration officials are not required to release migrant parents detained with their children, a reversal of an earlier ruling by U.S. District Judge Dolly Gee.

Advocates of tighter immigration policies hailed the decision, and hoped it would discourage adults from crossing into the country unlawfully and using their children to avoid being detained. Mark Krikorian, Executive Director of the Center for Immigration Studies, and a staunch proponent of stricter border controls, believes that allowing parents to escape custody may have encouraged a wave of migrant adults to enter the U.S. with their children. With the ruling, he hopes it makes using children a “less attractive” option.

The DHS reports that over 23,000 families have been held in custody between January and June, a marked increase from the 13,400 families apprehended in 2015. Most migrants come from countries like El Salvador, Guatemala, and Honduras.

Meanwhile, immigration rights advocates expressed disappointment in the ruling. According to Melissa Crow, Legal Director of the American Immigration Council, the court’s decision “misses the point” of protecting children from inhumane treatment. And separating children from their parents only exposes them to unfair treatment, she adds.

Following Judge Gee’s ruling, immigration authorities have released several hundred families from detention, and have held newly arriving families for short periods only. The number of immigrant families crossing the country has also increased since then.

Of course, the 9th Circuit ruling begs the question, “What happens to the children?”

Should the government decide to detain parents after releasing their children, they would be considered unaccompanied minors. This means they would have to be turned over to the Department of Health and Human Services, whose primary task will be to identify their closest possible guardians—relatives in the United States or even foster families. Of course, an immigration judge or the DHS will also have to decide whether to allow them to remain in the country or not.

For an in-depth explanation of this latest immigration ruling, schedule a consultation with the legal team of the Lyttle Law Firm. Visit our website or call us at 512-215-5225.

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