The administration announced a new policy Friday to detain nearly all illegal immigrant families nabbed at the border, offering the latest bold ante in an ongoing battle over President Trump’s attempt to stop a new surge of migration.
The policy will be controversial not only with congressional Democrats and immigrant-rights activists, but also with a federal judge who had ordered that children could be held no longer than 20 days in immigration detention.
Government lawyers, though, said yet another judge’s ruling earlier this week making most family separations illegal supersedes the 20-day rule and other restrictions, and gives the government the ability to hold families together until their immigration cases are completed.
“The government will not separate families but detain families together during the pendency of immigration proceedings when they are apprehended at or between ports of entry,” the Justice Department said in a filing with Judge Dolly M. Gee.
The arguments come as lower courts are increasingly asserting control of the immigration system — leaving the executive branch struggling to carry out its own policies amid potentially competing rulings and judges working at cross purposes.
In Friday’s filing the Justice Department said it was getting caught between a 2015 ruling in the so-called Flores settlement, which governs the treatment of illegal immigrant children caught at the border, and this week’s ruling in a case known as Ms. L v. ICE.
The Flores settlement says children must be released from immigration detention within 20 days, and turned over either to a Health Department dorm or to relatives or sponsors living in the U.S.
For nearly 20 years that ruling only applied to children who arrived at the border unaccompanied by parents. Judge Gee in 2015 updated the ruling to apply to all illegal immigrant children, saying they need to be released — and so should their parents.
That created what critics call a “catch-and-release” policy, which they blamed for the new surge in families streaming to the border.
On Wednesday another federal judge ruled in the Ms. L case that children should be kept with their parents.
The Trump administration says the only way that can happen — without a full-scale release of all illegal immigrant families — is to detain the families together.
“The Ms. L ruling addresses reunification of children with their parents, and specifically requires reunification “when the parent is returned to immigration custody” after a release from criminal custody,” the government said. “But this aspect of the Ms. L ruling would make little sense if that reunification would necessitate an immediate release of the parents from immigration custody under the Flores Agreement.”
The Trump administration said after this week’s ruling, the only way children can generally be released is if a parent agrees to a separation.
The Justice Department said in a statement it believes its hands are tied.
“We are beholden to a broken immigration system that Congress has refused to fix and that courts have exacerbated,” the department said in a statement. “While Congress has recessed for the 4th of July holiday, we continue to urge them to act decisively in order to solve the crisis at our border and end ‘catch and release.’”