NEW YORK (Reuters) - U.S. President Donald Trump bowed to political pressure and changed his immigration policy on Wednesday. In an executive order, the president said immigration officials would no longer separate migrant parents and children stopped at U.S. borders but would instead detain families together for as long as it takes to complete criminal or immigration proceedings against them.
There’s wiggle room in the order, which says the administration’s policy is to detain migrants as a family “where appropriate and consistent with law and available resources.” There is also considerable confusion about how the order, which calls for the possible repurposing of military facilities to house detained migrant families, will be implemented and what it means for more than 2,300 immigrant children already separated from their parents during the 10 weeks of the Trump administration’s “Zero Tolerance” policy.
One certainty: If the revised Trump policy means indefinite detention for immigrant families, it will be tested in U.S. courts.
The administration’s first challenge will be to change the terms of a 1997 settlement that requires the U.S. government to release underage migrants from adult detention centers as quickly as possible.
Judge Dolly Gee in Los Angeles who oversees enforcement of the agreement, known as the Flores settlement, has said the government can hold underage migrants for as long as 20 days if they’re detained with their parents. On Wednesday, Gene Hamilton, counselor to U.S. Attorney General Jeff Sessions, told reporters the Trump administration will seek to modify the settlement to allow for longer detention of migrant families.
That may not be easy. A civil rights lawyer who has worked for more than a decade to enforce the Flores settlement told me he will probably oppose any proposal to change its terms, though he said he would consider a proposed modification in good faith.
“I don’t think it likely we would agree to a fast expansion of family detention simply because the Trump administration has decided to embark on an immoral policy,” said Carlos Holguin of the Center for Human Rights & Constitutional Law.
Under the existing Flores framework, Holguin said, the new Trump policy presents migrant parents with a difficult dilemma: to keep their children with them in detention centers not designed for children or to allow their kids to be taken away, either to the custody of a relative or to a center appropriate for children.
“The choice is being forced upon them – choose your poison,” said Holguin.
The Justice Department did not immediately respond to a request for a response to Holguin’s comment.
The Flores case, which was brought as a class action on behalf of underage migrants in the custody of immigration authorities, dates all the way back to 1985. In 1997, the Clinton administration agreed to a global settlement of the case.
The agreement called for migrant children unaccompanied by a parent to be moved out of adult detention facilities “without unnecessary delay,” either to be placed in the custody of a relative or legal guardian or to be transferred to a minimally restrictive center licensed by state child welfare authorities. The settlement included exceptions for emergency conditions and children considered dangerous, but for the most part set a five-day limit for migrant kids to be held in adult detention centers.
Litigation during the Obama administration clarified that the settlement also covers kids traveling with a family member. In 2014, in response to a surge of migrants from Central America, Obama immigration officials opened so-called family detention centers in Texas and New Mexico. Immigration lawyers from the Flores case claimed these centers did not comply with child welfare requirements in the 1997 settlement.
The Obama Justice Department argued that the settlement did not apply to underage immigrants accompanied by a parent. It also argued the settlement should be modified to give the government more flexibility to detain kids with their families.
The 9th U.S. Circuit Court of Appeals in 2016 declined to modify the settlement and ruled that Flores protections apply regardless of whether kids have come to the U.S. with a parent or on their own. Either way, the appeals court said, the Flores settlement requires immigration officials to get underage migrants out of adult detention centers as quickly as possible.
But the 9th Circuit also dealt a critical legal setback to migrant families in that 2016 decision. Flores lawyers had argued that the settlement agreement requires immigration officials to release parents of underage migrants from detention so that the kids can remain with their parents. The appeals court said that theory was wrong.
Nothing in the Flores agreement, according to the 9th Circuit, requires the quick release of entire families held in detention centers.
The new Trump policy, which revives family detention, could not have been implemented if the 9th Circuit had agreed with Flores lawyers’ interpretation of the settlement in 2016.
The looming legal issue as the new policy takes effect will be how long kids can be detained alongside their parents.
Neither the Flores agreement nor the 9th Circuit decision sets specific time limits on family detention, though the settlement calls for unaccompanied kids to be released or transferred within five days.
In 2017, Flores lawyers told Judge Dolly Gee that Trump immigration officials were holding underage migrants for weeks or even months at border patrol stations and family detention centers that did not meet the settlement’s standards for children in detention.
The Justice Department responded that nearly all of the kids were released from those centers within 20 days. Judge Gee said a 20-day detention “can fall within the agreement’s parameters.”
But she also signaled that the Flores settlement does not allow indefinite detention of kids with their parents. In a ruling last June, she ordered the Trump administration to comply with the Flores requirement that kids be moved out of detention or into child-appropriate centers as quickly as possible.
The judge was not swayed by Trump administration arguments that underage migrants were safer in family detainment centers with their parents than in the custody of unscreened adults.
“Defendants entered into the Flores agreement and now they do not want to perform — but want this court to bless the breach,” she wrote. “That is not how contracts work.”
Judge Gee’s ruling last year suggests she will regard with skepticism a Justice Department motion to modify the Flores agreement to allow the government to impose indefinite detention on migrant families.
Even if the Flores framework remains intact, however, the settlement does not mean families must be released. It means, according to Flores lawyer Holguin, just that migrant parents will have to choose between keeping their children in detention or allowing their families to be broken up.
ACLU lawyer Lee Gelernt, who brought a challenge in California federal court to the Trump administration’s policy of separating migrant children from their parents at the border, said immigration advocates will sue again if the government imposes indefinite detention on children.
Flores lawyer Holguin said his allies are still figuring out the most effective strategy “to knock off the roughest edges” of the new Trump policy.
He said he’s confident the government can’t use the existing Flores settlement to detain entire migrant families for months on end.
“It’s not a vehicle for them to do that,” he said.
The views expressed in this article are not those of Reuters News.