By Suzanne Monyak

Law360 (July 21, 2020, 1:32 PM EDT ) Nonprofit lawyers are accusing the lead attorney in the long-running class action over detained migrant children of supporting a "coercive family separation process," revealing a division within the immigration bar on how to advocate for detained families during the pandemic.

In a Monday filing, the attorneys, who directly represent children held at U.S. Immigration and Customs Enforcement's family detention centers, asked to intervene in the class action, known as Flores, and claimed that the children's rights are "not adequately represented" under the counsel of Peter Schey.

Schey, co-founder of the Center for Human Rights and Constitutional Law, currently serves as lead counsel for the children in the high-profile class action, which set bedrock standards of care, including limits on the time children can spend in immigration detention, in a 1997 settlement agreement.

"It is unclear why class counsel is advocating for consent to separate the plaintiffs-intervenors from their accompanying parents or a waiver of their rights under the agreement that would inevitably lead to indefinite detention in unsafe, unsanitary, and unlicensed conditions during a pandemic as the sole alternative," the nonprofit lawyers wrote.

The nonprofit attorneys are seeking to intervene in the case on behalf of three detained migrant children, identified by their initials, including two toddlers being held at a Texas family center and a detained 8-year-old with tuberculosis.

Working with legal service organizations Aldea - The People's Justice Center and the Refugee and Immigrant Center for Education and Legal Services, or RAICES, they said they decided to get involved "after determining that they could no longer work directly with Flores class counsel given Mr. Schey's advocacy for and insistence on implementing a coercive family separation process." The groups had filed a friend-of-the-court brief last month detailing the conditions children face in the nation's three family detention centers.

They said in Monday's filing that Schey has supported presenting families with what advocates call a "binary choice": waive your child's right to be released to keep the family together, or allow your child to be released to a relative or sponsor and break up the family.

"Proposed plaintiff-intervenors therefore request intervention for the limited purpose of ensuring that their interests are protected, that their rights are advocated for, that orders given to preserve their lives and well-being are enforced, and that their concerns are not ignored to the detriment of their own health and safety and that of the public," they wrote.

In an email to Law360, Schey blamed the Trump administration's immigration policies, not the Flores settlement, for the binary choice presented to detained parents, pointing to asylum policies that have made it harder for migrants to clear initial screenings and prolonged family detention.

And while many families do choose to stay together, he said that a "small number" of families who either have older children, or are facing imminent deportation to a country where their children would be in danger, may choose to release their child to a relative in the U.S.

"The court believes the parents have the right to be informed about their options and that they are in the best position to determine what's in their children's best interest," he said. "We agree that while the decision is a difficult one, it is one that parents, not ICE or the court, must make."

U.S. District Judge Dolly Gee had ordered ICE to release children held for more than 20 days in the nation's three family detention centers by July 17, but extended that deadline to July 27 after both Schey and the government said that ICE needed additional time to prepare waiver forms for parents and find sponsors for children released without their parents.

While handing down that extension, Judge Gee described the family residential centers as "on fire," as confirmed cases of COVID-19 rise among employees and immigrants. She encouraged the agency to use its discretion to release parents as well, but she only has the authority to order the release of the children. A D.C. federal judge overseeing a separate case over the detention of migrant families during the pandemic is expected to issue a ruling on whether the parents and children should all be released this week.

The nonprofit attorneys added that their concerns for the children's well-being "cannot be understated as with each update by government counsel more children, more parents, and more detention staff become infected with COVID-19."

In declarations attached to the motion, they stressed that children experience psychological harm from being separated from their parents. In their experience, they said, families nearly always wish to stay together, except in rare circumstances where the child is detained with only one parent, typically the father, and the child's mother or another immediate relative lives in the U.S.

"That presentation of a 'binary choice' between separation or indefinite detention as the only options to comply with the [Flores settlement agreement] is not appropriate, especially during a global pandemic," Andrea Meza, director of the Family Detention Services Program at RAICES, said in a declaration.

Representatives for the legal services organizations did not return requests for comment Tuesday.

The legal services organizations are represented by Michael J. Stortz and Brett M. Manisco of Akin Gump Strauss Hauer & Feld LLP, Manoj Govindaia of RAICES, and Bridget Cambria of Aldea PJC.

The federal government is represented by Sarah B. Fabian of the U.S. Department of Justice's Office of Immigration Litigation.

The class of children is represented by Peter A. Schey of the Center for Human Rights and Constitutional Law.

The case is Jenny L Flores v. Edwin Meese, case number 2:85-cv-04544, in the U.S. District Court for the Central District of California.

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.