By JOSH GERSTEIN 12/02/15 06:53 PM EST Updated 12/02/15 09:01 PM EST

A new surge in families trying to enter the U.S. from Mexico illegally should prompt a federal appeals court to act more quickly to restore the government's authority to lock up those families pending deportation, the Justice Department argued in a motion filed Tuesday night.

While immigration officials have said monthly apprehensions of families have nearly tripled compared to last year, a top Border Patrol official said in a new declaration that detentions of families have spiked to more than 300 people per day on recent occasions.

"Within the last 15-20 days, there have been several days in which the number of individuals in family units apprehended along the Southwest Border has topped 300 in a single day," Border Patrol Planning and Analysis Chief Woody Lee wrote. "For example, on November 21, 2015, the Border Patrol apprehended 344 individuals in family units, the highest number of apprehensions in a single day since July 2014."

Lee said it is "especially concerning" that the numbers are rising now since "illegal migration along the Southwest Border is typically lower during the fall and winter seasons."

The Justice Department submitted Lee's declaration as part of a bid to speed up the government's appeal of a district court judge's ruling that a 1997 settlement requires the federal government to release illegal immigrant families with children soon after they are picked up. U.S. District Court Judge Dolly Gee gave Department of Homeland Security officials until October 23 to limit such detention to 20 days in most cases.

"This case warrants expedited consideration because the decision below has severely constrained DHS's flexibility to respond to an increasing flow of illegal migration into the United States through the appropriate use of immigration detention, expedited removal and the reinstatement of existing orders of removal," Justice Department lawyers wrote in the acceleration motion filed with the 9th Circuit U.S. Court of Appeals. "Necessary efforts ... may in some instances include the detention and return of family units to their countries of origins ... Past experience has shown the Government that it will be difficult to have and maintain a firm and humane response to the challenge of mass family migration, if we do not have the legal authority and nimbleness to strike the right balance in the face of a constantly changing landscape."

DHS Secretary Jeh Johnson said in September that his agency is trying to minimize such detention, but filed the appeal because it disagrees with the judge's legal conclusions and in order to preserve flexibility to deal with an influx of families crossing the border illegally.

A lawyer for the plaintiffs in the case, Peter Schey, said the duration of detention of families doesn't have a material impact on the flows of migrants. "The number of refugee families leaving Central America is linked to conditions of poverty and violence in the countries in the area and has nothing to do with Judge Gee's orders in the Flores case," Schey told POLITICO. "The number of refugee families fleeing Central America and seeking to enter the U.S. has fluctuated for over 30 years and interviews with these families consistently shows that why they flee has nothing to do with whether upon apprehension in the U.S. they will be detained for a few days or a few weeks ... Punishing innocent children by detaining them in prisons with unrelated adults is morally reprehensible, achieves nothing in the way of national security, and does irreparable harm to the mental and physical health of the children."

Immigration and Customs Enforcement Director Sarah Saldana said at a Senate Judiciary Committee hearing Wednesday that her agency is meeting the 20-day timeline. She said the average detention of families was earlier about 60 days and 90 days or more in some instances. "That's not happening anymore," she said.

At the hearing, Saldana faced bipartisan criticism from senators expressing frustration and anger that ICE's deportation efforts have been inadequate.

Sen. Richard Blumenthal (D-Conn.) complained bitterly that ICE had not detained a Haitian immigrant who served nearly 20 years on an attempted murder conviction, was paroled in January and allegedly murdered a woman in Norwich, Conn. in June. "I was totally dissatisfied with the briefings we've received," said Blumenthal, a former state attorney general and federal prosecutor. "The information has changed over time. It was inadequate."

Saldana said ICE has difficulty deporting people to Haiti because that country "does not have apparently the interest or the resources to assist" in providing travel documents. "We can't just drop them off," she said, noting that a 2001 Supreme Court decision generally limits immigration detention to six months unless removal from the country is likely. China, India and other countries also resist U.S. efforts to return nationals of those countries, she said.

Sen. Jeff Sessions (R-Ala.) said the U.S. was hardly helpless in the face of such resistance from Haiti's government. "If they refuse to do that [aid deportations], we have the ability to push back," Sessions said, urging that the problem be brought to the White House if it is intractable. "Mr. Johnson needs to go to his boss and say, 'This is unacceptable.'"

Sen. Ted Cruz (R-Texas) and Saldana squared off sharply during the question and answer period, with Saldana noting several times that Cruz was not present earlier in the hearing. "You're playing games with words," she said to Cruz at one point as he pressed her about the administration's policies.

"You want to play games, that's fine," Cruz countered a short time later.

Sen. Al Franken (D-Minn.) declared later that he believed Cruz's questioning of Saldana had been "unfair" and he questioned Cruz's claim that the Clinton Administration deported more than 12 million people in the eight years of that presidency.

http://www.politico.com/blogs/under-...-appeal-216365