US Judge Blocks Trump Administration’s Plan to Detain Immigrant Families Past 20 Days

September 28, 2019 Updated: September 29, 2019

A federal judge has blocked a Trump administration rule that allowed family units that enter the United States illegally to be held in detention for longer than 20 days.

U.S. District Judge Dolly Gee in Los Angeles ordered a permanent injunction (pdf) against a rule the Department of Homeland Security (DHS) announced 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.

The department also claimed that the requirements set out in the 1997 Flores agreement had already been met. But Gee said in her decision on Sept. 27 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 ruled that “the Flores Settlement Agreement remains in effect and has not been terminated.”

Federal immigration officials have reported record highs in the apprehension of illegal immigrants at the border to Congress in past months, saying that the numbers have overwhelmed border patrol facilities and resources. In May, border patrol agents apprehended or deemed inadmissible over 144,000 people crossing from Mexico—which were record-high numbers. The number of people apprehended or deemed inadmissible has been steadily falling after President Donald Trump pushed Mexico, through the threat of tariffs, to put more focus on the humanitarian crisis.

Kevin McAleenan, acting DHS secretary, said in August that the new rule “eliminates a key incentive that encourages traffickers to exploit children.”

“Today’s action addresses a court-imposed weakness in immigration law that prevented DHS from detaining a family together for more than 20 days and codifies critical commitments on the conditions for children in Federal care,” McAleenan said in a statement at the time.

He added that the new rule would help reduce the number of family units being apprehended at the border.

According to a DHS statement, 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.”

Following the new rule’s announcement, many of Trump’s opponents and Democrats expressed outrage, and sparked a multistate lawsuit filed in U.S. District Court in Los Angeles.

“This new Trump rule callously puts at risk the safety and well-being of children. It undermines a decades-old agreement reached in court by the federal government to prevent the unlawful detention of immigrant children,” California Attorney General Xavier Becerra said in a statement announcing the lawsuit.

In response to Gee’s decision, the White House said in a statement that the “ruling perpetuates the loophole that this same judge created, which has been exploited by criminal cartels to smuggle children across the United States Southern Border–often resulting in their physical and sexual abuse.”

“For two and a half years, this Administration has worked to restore faithful enforcement of the laws enacted by Congress, while activist judges have imposed their own vision in the place of those duly enacted laws. The Flores 20-day Loophole violates Congressional removal and detention mandates, creating a new system out of judicial whole cloth. This destructive end-run around the detention and removal system Congress created must end,” the statement said.

Similarly, the Justice Department (DOJ) expressed disappointment with the ruling.

”The Department of Justice is disappointed that the court is continuing to impose the outdated Flores Agreement even after the government has done exactly what the Agreement required: issue a comprehensive rule that will protect vulnerable children, maintain family unity, and ensure due process for those awaiting adjudication of their immigration claims,” a DOJ spokesperson said in a statement to media outlets.

Follow Janita on Twitter: @janitakan
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