U.S. Immigration and Customs Enforcement suggests around 180 detained migrant children remain in family detention centers beyond the legally permitted period because their parents did not want to be separated from them, according to a new document filed over the weekend. 

The filing was required by the U.S. District Court for the Central District of California as part of the lawsuit, Flores v. Barr, a case challenging last year’s move by the Trump administration to end a 1997 court settlement establishing standards of treatment for migrant children. The administration’s move was blocked, but advocates went back to court earlier this year, arguing that the government had kept minors in custody far longer than the legally prescribed 20 days at restrictive, unlicensed and unsanitary facilities.

On April 24, U.S. District Court Judge Dolly Gee ordered ICE  to “promptly and safely” release from detention facilities all children who do not pose a danger to the public and are not flight risks. One of the requirements of that order was that ICE make “individualized” determinations and submit a report on its efforts by May 16.

The report the administration filed Saturday includes a chart logging responses of parents at three family detention facilities run by ICE — two in Texas and one in Pennsylvania. ICE listed “parent does not wish to separate” as a reason for denying children parole in determinations made last week, which the agency said was “consistent with the existing parole review process.”

ICE wrote it had inquired about possible sponsors outside the detention center, among other things. The agency said officers “did not ask any parents to waive his or her Flores rights” during the process.

Lawyers representing clients at the three family detention facilities originally raised concerns about ICE actions in a press call last Thursday. They said ICE agents had approached detained parents, presenting them with a “binary choice.” They could either authorize their child’s release, resulting in their separation from them, or the families could stay in prolonged detention together. 

The immigration attorneys, who belong to pro bono legal service providers RAICES, ALDEA and Proyecto Dilley, said ICE had not notified them in advance that it would present parents with such a choice. The lawyers said the parents recounted that ICE agents did not provide other options and did not clarify whether or not parents would be deported without their children, some of whom were as young as 1 year old. 

“This choice they’re being given comes at a time when the international crisis that has resulted from COVID-19 should be bringing us together as human beings,” Allison Herre, managing attorney at Proyecto Dilley, said during the media call.  “The process by which ICE is … minimizing the humanity and detracting from the dignity of these families is really unfortunate to see.” 

Herre and other lawyers said they believe ICE timed its recent actions so the agency could tell the U.S. court it complied with court orders. They sent a letter last week to the independent monitor for the Flores settlement agreement, noting that 163 children held at the three family detention facilities were detained for an average of 137 days; 58 were detained for more than 200 days.

ICE did not respond to CQ Roll Call requests for comment on the matter. 

Last week’s accounts by the lawyers prompted the Congressional Hispanic Caucus to announce it was investigating the issue. Staff members of the office of Sen. Dianne Feinstein, the California Democrat who is ranking member of the Judiciary Committee, also are looking into the matter.

Rep. Bennie Thompson, the Mississippi Democrat who chairs the Homeland Security Committee, released a statement decrying ICE’s reported actions.

“While the number of COVID-19 cases in ICE facilities continues to rise daily, the Administration should use its authority to release families – together – as much as possible,” Thompson said in a statement Friday. “Parents should not be placed in the impossible position of choosing between the safety of their children or being separated. This is a false choice, and I urge the Administration to end this practice immediately.”