(Reuters) - Working under a rushed briefing order in its landmark federal court case challenging the Trump administration policy of separating migrant children from their parents when they cross the U.S. border, the American Civil Liberties Union on Monday asked U.S. District Judge Dana Sabraw of San Diego for an injunction that would bar the government from resuming family separation and would require authorities quickly to reunite disrupted families. The judge on Sunday moved up the government’s deadline for a response to Tuesday, given the “urgent nature” of the migrant family crisis.
As my colleague Jon Stempel reported Monday, the ACLU claims the executive order President Donald Trump signed last week, purporting to end the practice of holding migrant kids and parents in separate facilities, contains loopholes that will allow the Trump administration to resume family separation unless Judge Sabraw enjoins a policy he has already called “brutal, offensive, and (inconsistent) with traditional notions of fair play and decency.” The civil rights group also contends officials have no framework for getting kids who may have been transported thousands of miles across state lines back to their parents.
“If the government is left to follow its existing practices – which put the onus on parents to request reunification with their children, and without any reliable system in place for them to do so – the overwhelming majority of children will not be reunited any time in the near future,” the brief said.
What happens, though, if children are returned to parents still in U.S. government custody? Or, going forward, to children sent to Department of Homeland Security facilities along with parents detained at the border?
The ACLU brief deepens a split between the Justice Department and immigration advocates on this crucial question, which I first highlighted last week. Some context: The government’s handling of migrant kids is controlled by a 1997 class action settlement known as the Flores Agreement. (The agreement is an exhibit in the ACLU’s filing.) Under Flores, which focuses on kids who cross the border without a parent, federal authorities must transfer underage migrants out of adult detention centers in a matter of days, either to parents or
legal custodians or to facilities licensed for children. In 2016, the 9th U.S. Circuit Court of Appeals ruled that Flores also covers migrant kids who arrive in the U.S. with a parent, but the appeals court rejected Flores lawyers’ theory that the agreement requires the release of parents of migrant kids.
Last week, the Justice Department moved to modify the terms of the Flores Agreement. If you’ve followed the family separation saga, you may have heard that Flores sets a 20-day limit on detention of migrant kids with their parents in facilities not licensed for kids. It doesn’t. That 20-day figure comes from 2015 and 2017 rulings in which Los Angeles federal district judge Dolly Gee, who now oversees the Flores case, said 20 days of family detention “can fall within the agreement’s parameters.”
Instead of asking Judge Gee to change the agreement to extend time limits for family detention, the Justice Department asked her to suspend the Flores requirement that underage migrants be held in facilities licensed for children if kids can’t be released to the custody of an undetained family member or guardian. Suspending the licensing requirement would effectively allow immigration authorities to impose indefinite detention on entire families held in U.S. Immigration and Customs Enforcement facilities.
Without the change, the Justice Department said in its Flores brief, it cannot keep migrant families together because Flores requires kids to be transferred to child-licensed centers. “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,” DOJ told Judge Gee. “It cannot be done.”
The ACLU said in Monday’s brief that the government’s assertion is not correct – and it supplied an affidavit backing its argument from the lawyer who has been class counsel in the Flores case since the mid-1980s.
At a phone hearing last Friday in the ACLU case, Judge Sabraw asked whether it would be futile to enjoin family separation if Flores requires kids to be transferred out of unlicensed detention centers in 20 days. (A hearing transcript is attached to the ACLU’s new brief.) ACLU lawyer Lee Gelernt told Judge Sabraw that the government is using Flores as a red herring and that “as a legal matter, I am not sure that the government fully believes” its own argument that the settlement requires families to be separated after 20 days.
According to Gelernt, the Flores Agreement permits detained parents to decide whether their kids are better off staying together as a family in a detention center unlicensed for children or being transferred to a licensed facility. “Flores is, ultimately, at the end of the day, a settlement for the best interest of the child,” Gelernt said. “If a mother is going to have her bond hearing on the 34th day, she can say, ‘I don’t want my 2-year-old child sent to some facility in Chicago. I would rather have my child stay with me in this facility … I think that is sort of basic settlement law, that the parent can always say, ‘Look the best interest of my child is to remain with me.’”
The judge pointed out that Flores grants rights only to migrant children, not to parents. Gelernt agreed that the settlement does not give parents a right to be released from detention. But he said the agreement “doesn’t remotely suggest a parent is still not making decisions for the child’s best interest so that the child doesn’t have to be torn away.”
In the affidavit attached as an exhibit to the ACLU brief, Flores class counsel Carlos Holguin of the Center for Human Rights and Constitutional Law, who has been working to enforce the agreement since the mid-1980s, agreed with the ACLU interpretation. “I know of nothing in the Flores settlement that stops families from waiving their rights under the agreement and electing to remain in an unlicensed family detention center together,” Holguin’s affidavit said. “The settlement was intended to promote family reunification and give children the right to placement in a licensed dependent care facility. It was not intended to usurp the right of parents to decide that it would be better to waive that right than suffer the trauma of family separation.”
Isn’t that what the Trump administration is asking in its Flores modification order? To allow kids to stay with their parents in unlicensed detention centers?
Not according to the ACLU. At the phone hearing with Judge Sabraw on Friday, Gelernt asserted DOJ’s real motive “is to get rid of Flores’ other protections for kids,” he said. “They are using the 19-day thing as a sort of transparent loophole.”
In response to a query last week on the Flores settlement and long-term family detention, a DOJ spokesman sent an email statement: “Irrespective of the court’s decision in Flores, it is incumbent for Congress to finally act to keep families together, end catch and release and create the foundation for an immigration system that serves the national interest.” A spokesman for San Diego U.S. Attorney Adam Braverman, whose office is handling the ACLU case before Judge Sabraw, did not immediately respond to a Reuters request for comment.
In the long run, of course, the ACLU and Flores lawyers would like immigrant families not to be detained at all. But for now, they’re at least hoping that migrant parents get to decide what’s best for their kids – not Trump immigration officials.