Thread: Trump administration asks court to alter decree to OK family detention

The Justice Department request came in response to the president's executive order seeking to quell a political firestorm over a policy that led to thousands of children being separated from their parents. | AP Photo

Trump administration asks court to alter decree to OK family detention


By JOSH GERSTEIN
06/21/2018 04:42 PM EDT
Updated 06/21/2018 08:34 PM EDT


The Justice Department asked a federal judge on Thursday to alter a decades-old settlement in order to allow the Trump administration to implement a new policy for detaining families taken into immigration custody after crossing the border with Mexico.

The emergency motion, filed with U.S. District Court Judge Dolly Gee in Los Angeles, seeks to change provisions in the so-called Flores agreement that typically bar detention of minors for more than 20 days, as well as a requirement that children be held in facilities licensed as state-approved daycare centers.

The Justice Department request came in response to President Donald Trump’s executive order on Wednesday seeking to quell a political firestorm over a policy that led to thousands of children being separated from their parents. That practice followed the Trump administration’s adoption of a “zero tolerance” approach calling for prosecution of nearly all adults caught crossing the border illegally.

The Thursday filing said that a 2015 ruling from Gee, holding that the consent decree covered children entering the U.S. with a family member, effectively made it impossible to detain immigrant families and led to a surge in migrants crossing the border with children.

“These realities have precipitated a destabilizing migratory crisis: tens of thousands of families are embarking on the dangerous journey to the United States, often through smuggling arrangements, and then crossing the border illegally in violation of our federal criminal law,” the Justice Department lawyers wrote. “This entire journey and ultimate crossing puts children and families at risk, and violates criminal laws enacted by Congress to protect the border. Those illegal crossings must stop.”

The government lawyers noted that three years ago, under the Obama administration, the Justice Department asked Gee to modify the consent decree and that she declined. “Several material changes in circumstances” justify her doing so now, the federal government attorneys said.

“Undeniably the limitation on the option of detaining families together and the marked increase of families illegally crossing the border are linked,” the Justice Department filing said. “This Court … has the authority and responsibility to resolve these growing concerns by immediately permitting family detention.”

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A Justice Department spokesman stressed that the request to the court was no substitute for a move by lawmakers to address the issue.

“Irrespective of the Court’s decision in Flores, it is incumbent for Congress to finally act to keep families together, end catch-and-release, and create the foundation for an immigration system that serves the national interest,” the spokesman said.

One immigrant-rights advocate involved in the Flores litigation, which dates back to 1985, said those representing the children’s interests in the case planned to fight the administration’s move.

“We will challenge the motion and believe prior precedent is in our favor,” said Holly Cooper, a co-director of the Immigration Law Clinic at the UC Davis School of Law.

Another attorney representing children in the long-running case said on Wednesday that no change to the agreement was needed.

“There is nothing in the Flores settlement that prevents the secretary of Homeland Security from detaining children with their parents as long as the conditions of detention are humane and the child remains eligible for release unless the child is a flight risk, or a danger to herself or others, or the child’s parent does not wish the child to be released,” said Peter Schey of the Center for Human Rights and Constitutional Law.

The government’s motion does not seek to modify the Flores agreement’s requirements pertaining to food, water and access to bathrooms, but only the mandate to obtain state licenses.

https://www.politico.com/story/2018/06/21/trump-administration-flores-agreement-change-662962

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