The Trump administration recently claimed it could not reunite migrant children with parents who are being held in ICE detention due to a court order requiring the government to release such children from custody within (at most) 20 days. The government now claims, however, that it can legally detain the children with their parents in ICE detention for much longer than 20 days. How did the government come to this position? In this post we’ll answer that question and address a central flaw in the government’s logic.
You might have heard the Trump administration insist in recent weeks that legal restrictions prevent it from keeping migrant children together with their parents in cases where the parents’ immigration proceedings (including asylum claims) are still in process. The principal restriction they have in mind is a judicial decree in the long-standing Flores case, enforcing a settlement that requires the government to “release a minor from its custody without unnecessary delay” except where detention of the minor is required “either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor’s safety or that of others.” The courts have construed that injunction generally to require release within 20 days. Therefore, the government claimed, the Flores decree prevents DHS from holding minors in detention with their parents for more than 20 days, which in turn requires family separation.
Accordingly, a couple of weeks ago the Department of Justice filed an “Application for Relief” with the judge in the Flores case, Dolly Gee of the U.S. District Court for the Central District of California, seeking “limited emergency relief that would: (1) exempt DHS from the Flores Settlement Agreement’s release provisions so that ICE may detain alien minors who have arrived with their parent or legal guardian together [with that parent] in ICE family residential facilities; and (2) exempt ICE family residential facilities from the Agreement’s state licensure requirement.”
Judge Gee has not yet ruled on that DOJ request for a new limited exemption from application of the Flores injunction (a request that presents its own problems). But before the plaintiffs even had a chance to respond, last Friday DOJ filed a very different, and extraordinary, sort of document with Gee—a self-described “Notice of Compliance” in which DOJ informed Gee that DHS will unilaterally proceed with family detention of greater than 20 days, without first hearing from her on the government’s earlier application for a partial exemption from the Flores injunction.
What’s the government’s theory of why it can act unilaterally in a way that a few days earlier it claimed would violate the Flores injunction?
DOJ now argues that, in light of a second injunction recently issued by a different trial judge in a different case, the Flores settlement itself is best read to permit extended detention of children with their DHS-detained parents. Confused? Well, here’s the basic structure of DOJ’s argument, as we understand it:
1. The recent order in the second case, Ms. L v. ICE—issued by District Judge Dana Sabraw on June 26—preliminarily enjoins DHS (including ICE) from detaining adults in its custody “without and apart from their minor children, absent a determination that the parent is unfit or presents a danger to child, unless the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child in DHS custody.”
2. The earlier court decree in Flores enforces the requirement of Paragraph 14 of the 1997 Flores settlement agreement that the government must “release a minor from its custody without unnecessary delay,” which courts have construed to impose a 20-day maximum for minors’ detention.
3. It is impossible for DHS both to release minors after 20 days—as the Flores agreement appears to require—and simultaneously keep families together as the Ms. L. injunction commands.
4. However, DOJ now construes the phrase “without unnecessary delay” in Paragraph 14 of the Flores settlement to allow DHS to keep the children in custody with their parents because the Ms. L. injunction has made such family detention beyond 20 days “necessary.” Once the Flores order is interpreted in this manner, writes DOJ, “the rulings work together to permit detention of parents with their minor children with whom they are apprehended.”
5. DOJ has informed the court that, based upon this unilateral construction of Paragraph 14, “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 and therefore subject to the Ms. L injunction.” (In its earlier brief, DHS represented that it was seeking the court’s permission to do so only in ICE “family residential centers” that allegedly satisfy all of the Flores minimum standards for conditions in facilities holding minors except the requirement of state licensing. The DOJ brief last Friday does not specify whether the facilities at which it will now “detain families” meet any or all of those minimum standards.)
The Justice Department is correct about points 1 and 2—i.e., about what the Ms. L. order and the Flores order respectively require. The problem with DOJ’s argument, however, comes at point 3—its claim that it’s impossible for the government simultaneously to comply with both injunctions and that therefore it is “necessary” (as that term should be construed under Paragraph 14 of the Flores agreement) not to release the minors but instead to hold the whole family in long-term ICE detention.
In fact, in the vast majority of cases it’s possible for the government to handle families seeking asylum in a way that would comply with both court rulings: DHS could simply return to what it was doing until recently in those cases where an adult member of a family presents neither a flight risk nor a danger to the public—namely, releasing the parents and children together, subject to a number of proven tools to prevent any risk of nonappearance at future hearings that Eleanor Acer discusses in her very important post, such as various forms of community supervision or (in cases where such supervision is determined to be insufficient) the use of ankle monitors.
Because DHS can thereby comply with both injunctions at once, at least in many of the cases in question, it is not “necessary” to delay release of the minors in such cases, even accepting DOJ’s new, aggressive reading of the “without unnecessary delay” qualification of Paragraph 14 of the Flores agreement.
Therefore it appears that the government’s announced intention to detain children in DHS facilities with their parents will violate the Flores agreement unless and until a court amends that injunction. DOJ’s “Notice of Compliance,” in other words, is in truth a notice of noncompliance. At the very least, surely the Department of Justice should have asked Judge Gee whether she shares the government’s view of what Paragraph 14 allows, before acting unilaterally. The Trump administration’s decision to go it alone before even hearing from the judge on its own pending application for relief (a tailored exemption) from the Flores injunction is, to say the least, audacious (and probably tone-deaf, too, because it’s not likely to sit well with the court).
One further aspect of the recent filings is also noteworthy: Counsel for the Flores plaintiffs, in their brief filed late last Friday, agreed with DOJ to a very limited extent about the possibility of family detention under the Flores agreement without the need for new “exemptions.” They argue that the agreement implicitly allows a parent in DHS detention to “knowingly and voluntarily waiv[e] her or his child’s right to release under Paragraph 14” if that parent would prefer family detention in an ICE facility. In its own filing last Friday, DOJ included a sentence that sounds very similar to plaintiffs’ parental “waiver” precondition: “Relying on a parent’s consent in these circumstances where the family is together makes sense.”
In the remainder of its notice, however, DOJ does not suggest that DHS will engage in family detention only with, and after, truly knowing and voluntary parental waiver of Flores rights. It appears to be asserting, instead, DHS’s authority to detain whole families even in cases where the parents have not exercised such waiver. Presumably Judge Gee will, in the days to come, address whether the Flores agreement recognizes the possibility that a detained parent might “knowingly and voluntarily waiv[e] her or his child’s right to release under Paragraph 14”; if so, what a “knowing and voluntary” waiver might require in a case such as this, where detained parents are put to such an extraordinary choice; and whether (contrary to DOJ’s apparent view) such a waiver is a necessary precondition for DHS to keep minors in custody with a parent for longer than 20 days.