The Trump Administration Can’t Detain Immigrant Children Indefinitely, A Federal Judge Has Ruled
If the Trump administration’s new rule is implemented, it will likely result in thousands of families being detained while their immigration cases play out.
A federal judge on Friday ruled against the Trump administration’s attempt to detain undocumented immigrant children indefinitely, saying it violated the terms of a court settlement agreement.
The administration’s new regulation had sought to replace a 1997 court settlement known as the Flores agreement that limits government detention of immigrant children to 20 days. However, US District Judge Dolly Gee denied the government’s request and permanently enjoined them from implementing the regulations.
"The Flores settlement agreement remains in effect and has not been terminated," Gee said in her order.
The Flores settlement agreement initially applied only to unaccompanied immigrant minors, but in 2015, a federal judge ruled it also extended to children who arrived to the US with their parents, thus applying the 20-day limit to families with children.
“The court found that in numerous material ways the final regulations were inconsistent with the terms of the settlement,” said Peter Schey, one of the lawyers who filed the original lawsuit the Flores agreement stems from.
In a statement the Justice Department said it was disappointed that Judge Gee was continuing to impose the Flores settlement despite the government issuing a rule "that will protect vulnerable children, maintain family unity, and ensure due process for those awaiting adjudication of their immigration claims."
If the Trump administration’s new rule is implemented, it will likely result in thousands of families being detained while their immigration cases play out. And the ever-increasing immigration court backlog means those immigrant families could be held for months or even years.
The Trump administration has blamed the Flores settlement for the high numbers of immigrant families arriving at the US–Mexico border, saying it’s a pull factor for the thousands of mostly Central Americans who believe they will be released from US custody if they travel with a child. Being able to detain children with their parents while their immigration cases are adjudicated would eliminate the incentive, the administration has said.
The Flores settlement agreement says the government has 20 days to transfer immigrant children, including those with parents, to state-licensed facilities. But because states don't detain families, they don't have licensing procedures for facilities that would hold children and parents. As a result, the government can only hold families for 20 days before releasing them.
The new rule would let the government circumvent this by allowing it to license its own facilities, giving the Trump administration the ability to hold immigrant families indefinitely.
Lawyers for the Trump administration are expected to appeal Gee's final ruling.