Lawyers who have represented children crossing the US border for decades weighed in on a battle over the Trump administration’s immigration policies early Saturday, teeing up the issue for a federal judge to decide what should happen going forward.
The plaintiffs are parties to a settlement agreement in the Supreme Court case Reno v. Flores, which provides certain restrictions on federal officials’ ability to detain migrant children, including their release after 20 days. The Flores agreement has become a crucible for the Trump administration as it seeks to deal with the fallout over family separations at the US border.
The administration wants to hold the parents for the entire duration of their immigration proceedings – which could last just days or many months. As a result, last week the Justice Department asked US District Court Dolly Gee in California to modify the Flores settlement in order to be able to hold children with their parents, which may go well beyond 20 days in certain asylum cases.
Lawyers for the plaintiffs told Gee that the Justice Department has offered “no legitimate basis” to alter that original agreement.
“Revoking the right of accompanied (minors) to prompt release from custody or placement in a facility properly licensed for their care, is hardly a ‘narrow’ matter, and the ‘equities’ and ‘human considerations’ hardly suggest that detained accompanied minors should now be stripped of the protections they possess under the Agreement for no other reason than President Trump’s ordering the Attorney General to move this Court to modify the Agreement as part of his attempt to remedy the chaos his decision to separate children from their parents caused in the first place,” the plaintiffs’ lawyers wrote early Saturday.
The lawyers pointed to similar arguments made under the Obama administration about the “influx” of migrants crossing the border that Gee rejected, and argued there’s nothing in Flores that requires the administration to separate families as the only alternative.
While the plaintiffs suggest the administration can simply release the family units together into the interior of the United States, the Trump administration has repeatedly denounced “catch and release” because officials believe immigrants often do not show up to future court dates. Yet Customs and Border Protection has stopped referring cases to the Justice Department for prosecution, for those who don’t have a criminal history, effectively curtailing the Trump administration’s “zero-tolerance” border policy for now.
How Gee deals with a sister court’s order from earlier this week could be important. US District Court Judge Dana Sabraw ordered the administration to stop separating families, absent certain narrow circumstances, and the Justice Department told Gee on Friday night that it plans to follow that directive. Under Sabraw’s order, however, parents may consent to the release of their children.
At this point, Gee could ask the parties to come in for a hearing or issue a written opinion at any time.