Dozens of Democratic lawmakers have urged a federal appeals court to uphold an order from a lower court blocking the Trump administration from enforcing a new rule that would allow families who enter the United States illegally to be held in detention for longer than 20 days.
The new rule was announced by the Department of Homeland Security (DHS) in August to replace the Flores settlement agreement.
The 1997 Clinton-era Flores agreement is a court ruling that says minors who cross the border illegally cannot be detained for more than 20 days. This means the children and their families then must be released into the interior of the United States, with a court date set for possibly years down the road.
The DHS and Department of Health and Human Services said the new rule would terminate the Flores agreement, effectively allowing for DHS to keep family units together in detention “during fair and expeditious immigration proceedings.” The rule was introduced to respond to the influx of family units entering illegally across the southern border in hopes of being released into the interior of the country rather than detained during removal proceedings.
Following the rule’s announcement, many of Trump’s opponents expressed concerns, prompting multiple lawsuits. The rule was rejected by a district court judge in Los Angeles in September 2019, who ordered a permanent injunction against the rule.
The judge, U.S. District Judge Dolly Gee, said in her decision that the terms of the new regulations “fail to implement and are inconsistent with the relevant and substantive terms of the Flores Settlement Agreement.” She also rejected the administration’s argument that the requirements set out in the 1997 Flores agreement had already been met. The Trump administration subsequently appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit.
On Tuesday, 135 congress members from the Senate and House of Representatives including House Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Chuck Schumer (D-N.Y.), filed a friend-of-the-court brief (pdf) calling on the 9th Circuit to block the Trump administration from implementing the rule, arguing that the Flores agreement “is key to ensuring there are minimum health and safety requirements for the custody of children.”
The lawmakers argued that the new rule is inconsistent with the terms and purpose of the Flores agreement because it allegedly effectively allows for the indefinite detention of migrant children. They said this is inconsistent because the Flores agreement core stipulates that the government “shall expeditiously process” the child after arrest and “shall release a minor from its custody without unnecessary delay.”
“The regulations thereby eliminate the assurance that the facilities housing these children satisfy state standards, and they deny the independent oversight of federal immigration detention facilities that is critical to maintaining the health and safety standards for migrant children that the agreement guarantees,” they wrote.
The administration argues that the rule allows the departments to address the statutory and operational changes that have occurred since the Flores agreement was put in place 23 years ago.
The Trump administration has been critical of the Flores agreement, saying that the agreement has been responsible for the influx of family units crossing the southern border into the United States in recent years.
Kevin McAleenan, former acting DHS secretary, said in August 2019 that the new rule “eliminates a key incentive that encourages traffickers to exploit children.” DHS states that the rule would continue to “ensure that all alien children (both accompanied minors and unaccompanied alien children) in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors.”
Along with Congress members, a coalition of state attorneys general also filed a friend-of-the-court brief (pdf) on Tuesday urging the court to uphold the lower court’s ruling.
Charlotte Cuthbertson contributed to this report.