President Trump’s new immigration policy now depends on either the courts or Congress overturning a 2015 ruling that the administration says forced family separations.
That obscure 2015 ruling, the so-called “Flores settlement,” is now the crux of the immigration debate, with Mr. Trump on Wednesday ordering his attorney general to ask the court to revise the agreement, and the president also pleading with Congress to step in and overturn it by law.
Indeed, it is the Flores settlement, far more than any Democratic-backed law, that has fostered the current situation of families surging the border, which prompted the administration’s zero-tolerance policy.
“The result of this decision and this ruling has placed the executive branch in an untenable position,” Gene Hamilton, a senior aide to Attorney General Jeff Sessions, told reporters Wednesday.
Originally reached in 1997, the Flores settlement set standards for children who came to the border without their parents — Unaccompanied Alien Children, or UAC in government-speak. But in 2015 Judge Dolly M. Gee, an Obama appointee who sits in the Central District of California, ruled that even children who came to the border with parents should be protected.
That means the children must be quickly released from custody — Judge Gee said in the case of those who came as families, within about 20 days. And since the children are generally to be released to parents, it means the government has to free them too, so that it can release the children to them.
The Obama administration said at the time, and later the Trump administration agreed, that this created the family “loophole” — adults know that if they show up at the border with children, they can get relaxed treatment and quick release into the U.S., where they can disappear into the shadows.
Mr. Trump on Wednesday ordered Mr. Sessions to “promptly” ask Judge Gee to revise her ruling and allow for prolonged family detention.
If the decision stands, it means that while the families can be kept intact during the initial criminal trials that are part of Mr. Trump’s zero-tolerance policy, they’ll eventually be released under the family loophole — undercutting the get-tough approach.
“Judge Gee will have a decision to make,” Mr. Hamilton said.
But Peter Schey, the lawyer for the children in the Flores settlement, said Mr. Trump’s attack on the case is “factually and legally false and dishonest.”
He said even under Flores, children can be detained with their parents as long as the conditions are humane and the child isn’t in a jail-like secure setting.
Mr. Schey also said he’s considering asking Judge Gee to update her order and halt deportations of any parents until they’re reunited with their children — and perhaps to order the government to reunite already-deported parents, too.
“This entire episode has been a disaster for the well-being and safety of thousands of innocent children and must come to an immediate end with remedial steps being taken to undo the extreme harm caused by the mass separation of children from their parents,” he said.
Judge Gee has been largely sympathetic to Mr. Schey’s arguments over the years, and Mr. Sessions will have an uphill battle in asking her to revisit her previous ruling.
When the Obama administration argued the case in 2015, Judge Gee rejected their claims, found children were subject to “widespread and deplorable conditions,” and issued a wide-ranging ruling giving the government 90 days to clean things up or else she said she would start ordering the children released.
The Obama administration appealed — and pointedly warned the courts to expect a new surge of illegal immigrant families, and even an increase in children being kidnapped so adults could pose as families, trying to take advantage of the situation.
The 9th U.S. Circuit Court of Appeals rejected those arguments and largely upheld Judge Gee’s ruling.
Homeland Security officials say the Obama administration was right: the rate of fraudulent families has soared 900 percent this year.