The U.S. Justice Department asked a federal judge Thursday to modify a consent decree to allow parents who crossed the border illegally with their children to remain together in residential facilities while immigration proceedings are pending.
The department acted a day after President Donald Trump signed an executive order to keep immigrant families together. The order said Attorney General Jeff Sessions should ask a federal court to modify a 1997 consent decree that blocked long-term holding of immigrant children in unlicensed facilities.
The Flores settlement said most minors in immigration custody should be released without unnecessary delay, with first preference for release to a parent, followed by release to a legal guardian, an adult relative, a designated adult or a licensed program. Minors in immigration custody should be housed in facilities meeting state standards for the care of dependent children, according to the settlement.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled in July 2016 that the Flores settlement applies to immigrant children traveling with a parent, as well as to unaccompanied minors. The decision affirmed a federal judge’s refusal to modify the settlement.
The time period for release of the children or transfer to a licensed facility has been set at 20 days.
The Justice Department said it was asking for “limited emergency relief” to allow detention of the children with their families in residential facilities maintained by U.S. Immigration and Customs Enforcement. The department says the court should also determine that the settlement’s state license requirement does not apply to ICE facilities.
“These changes are justified by several material changes in circumstances—chief among them the ongoing and worsening influx of families unlawfully entering the United States at the southwest border,” the government says in a memorandum supporting its application for relief from the settlement.
The Trump administration is detaining and prosecuting people entering the country for the first time, which is a misdemeanor. The policy is a change from that of the Obama administration, which prioritized the deportation of gang members, felons and people who posed a national security threat. The Trump administration also ended the practice known as “catch and release” in which immigrants were released while their cases were pending.
Kimi Jackson, director of the ABA’s South Texas Pro Bono Asylum Representation Project, explained the separation process in an interview with the ABA Journal.
Immigrants caught crossing the border outside of an official crossing were arrested and taken to U.S. Customs and Border Protection for processing. Adults usually spent about two days at the stations before they were taken to federal court and asked to plead guilty to unlawful entry. The adults were usually sentenced to time served in CBP custody and, if there was no asylum claim, they were sent to immigration detention centers and put into expedited removal, which allows deportation without a court hearing.
Minors were kept at the CBP stations for up to 72 hours before they were turned over to the Office of Refugee Resettlement, part of the U.S. Department of Health and Human Services.
The Justice Department says it shouldn’t be forced to release immigrant families to keep them together. “It cannot be the case—nor is it consistent with immigration law—that the government’s only option, when facing a crisis of illegal border crossings, is simply to permit such illegality by releasing all aliens after apprehension with full knowledge that later voluntary appearance for removal proceedings is increasingly rare.”
U.S. District Judge Dolly Maizie Gee will consider the request, according to the National Law Journal.
Hat tip to the National Law Journal.