The Justice Department asked a federal judge Thursday to expand family detention, seeking permission to hold children beyond the 20-day limit set in a 2015 court ruling.
The move is critical to President Trump’s new executive order trying to stop family separations.
Government officials say a 2015 ruling by U.S. District Judge Dolly M. Gee, the so-called “Flores settlement,” created the current catch-and-release practice Mr. Trump was trying to head off with his zero-tolerance policy on prosecuting all illegal border crossings.
Now they’ve asked Judge Gee to revise the agreement, saying the “crisis” of families streaming toward the U.S. border has grown out of control and the government needs new tools to stop it.
“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 Justice Department said in its filing.
It will be an uphill legal battle.
Analysts say Judge Gee helped precipitate the current immigration crisis with the 2015 ruling, which updated the original 1997 Flores agreement that lays out standards for treatment of illegal immigrant children.
The 1997 agreement governed children who showed up at the border without parents. But Judge Gee ruled in 2015 that it also covered children who come with families. She said laid out strict conditions for how the children should be treated, and set a general limit of 20 days that children can be detained in Homeland Security facilities.
And because children should generally be released to their parents, the 20-day limit means the parents are usually released as well, so that the children can then be turned over to them.
That 20-day limit created what government authorities call the family “loophole” — immigrants who crossed the border illegally figured out that if they showed up with children, they could gain more relaxed treatment than if they showed up alone.
The Obama administration, which argued the 2015 case, had warned Judge Gee and later the 9th U.S. Circuit Court of Appeals that her ruling would spark a new surge of illegal immigration — and lead to children being “abducted” from Mexico as adults tried to portray themselves as families.
Both eventualities have come to pass.
Fewer than 40,000 people traveling as families were nabbed at the border in 2015. This year the government is on pace for nearly 90,000.
And hundreds of children have had to be taken away from adults who fraudulently claimed they were parents.
“Under current law and legal rulings, including this court’s, it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings. It cannot be done,” the Trump administration told Judge Gee. “One reason those families ‘decide to make the dangerous journey to illegally enter the United States is that they expect to be released from custody.’”
Peter Schey, the lawyer who represents the children in the Flores settlement, said it was “factually and legally false and dishonest” to blame the court rulings for the family separations that have occurred under Mr. Trump.
“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.
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.