Not one of the 366 families in Immigration and Customs Enforcement detention agreed to be separated from their child when asked by the agency last week, several immigration lawyers and a senior ICE official told NBC News.
Late last week, ICE officers presented parents who were held in ICE detention with the option of separating from their children or remaining together in detention indefinitely. A copy of the form presented to the parents was obtained by NBC News.
Lawyers representing the immigrant families said ICE would be able to more easily deport adults separated from their children and the parents feared they would not be reunited with their children, if separated.
The decision to present parents with the option to release their children was made in response to a court order requiring the agency to show that it is in compliance with the Flores court agreement, which protects the rights of children in immigration custody.
Now, to further show compliance, ICE is drafting a new form that would ask parents to waive the rights granted to them under the Flores settlement, the ICE official said. Those rights include not holding children longer than 20 days in facilities that are not licensed to hold children, as none of the three ICE family detention centers are.
The Trump administration has said Central Americans are incentivized to make the dangerous journey to the U.S. southern border with children in part because the Flores agreement requires children to be released within 20 days. Typically, adults were released with their children at that time.
Immigrant rights groups sued the Trump administration for keeping families in ICE detention as the COVID-19 crisis continues to spread and claim lives in the United States. There has been one death reported in ICE adult detention, but so far no infections have been reported out of the three family detention centers, an agency spokesperson said.
Lawyers representing immigrant families said their clients were confused and disturbed by the form and felt that ICE officers were using it to intimidate them into giving up their children.
"It was not the intention of the agency to do any separations," the ICE official said. "But I certainly realize based on what I read that people came away with that impression."
Many of the families being held have been in detention since last fall waiting for the results of federal lawsuits that challenge the Trump administration's policies and procedures on asylum, according to immigration attorney Bridget Cambria.
Cambria represents clients in the family detention center in Berks County, Pennsylvania, where many of the families include infants.
She and other immigration lawyers said the form presented to parents last week was identical to a policy previously floated by the Trump administration known as "binary choice" that would allow parents to separate from their children if they did not want to bring them into detention indefinitely.
A spokesperson for ICE said the form presented to parents last week was not part of a new binary choice policy.
"ICE has not instituted binary choice or separated any parents from their child pursuant to binary choice, and ICE has not implemented any new forms to conduct the new parole determinations as required by the court,” the ICE spokesperson said. “Any assertion to the contrary is plainly false."