The Trump administration on Monday lost a bid to persuade a federal court to allow long-term detention of migrant families, a significant legal setback to the president’s immigration agenda.
In a ruling that countered nearly every argument posed by the Justice Department, Judge Dolly M. Gee of the U.S. District Court in Los Angeles held that there was no basis to amend a long-standing consent decree that requires children to be released to licensed care programs within 20 days. The government said that long-term confinement was the only way to avoid separating families when parents were detained on criminal charges.
Gee said the administration’s request to modify the decree, the 1997 Flores agreement, was " a cynical attempt” to shift immigration policymaking to the courts in the wake of “over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”
In another setback, federal immigration authorities were preparing Monday to unspool the administration’s family separation program, with 54 young migrants scheduled to be returned to their parents as a result of an earlier court ruling from a federal judge in San Diego. The secretive operation set to unfold Tuesday involves transporting children hundreds of miles to undisclosed locations around the country.
The reunions cover a little more than half of the youngest children — those younger than 5 — who had been separated from their families under the administration's program to jail adults who crossed the border illegally.
The operation will be carried out with an unusual level of secrecy under the oversight of the Department of Homeland Security, according to federal lawyers and others familiar with the plan.
A parallel effort is underway to deport some of the migrants: 11 reunified families will be returned to their home country, Guatemala, on Tuesday, the country’s vice minister of foreign relations said at a news conference.
Homeland Security Secretary Kirstjen M. Nielsen was scheduled to travel to Guatemala City the same day, with illegal immigration one of the topics on her agenda, department officials announced.
President Donald Trump had pledged to end what he called the “catch-and-release” policies adopted by previous administrations for unauthorized immigrants apprehended at the border, but the two court rulings have left few good policy alternatives to achieve his goal.
The attempt to jail illegal border crossers and hold their children in less-restrictive facilities, ordered in May, led to widespread public outrage and was effectively reversed by the ruling in San Diego; but holding parents and children together for lengthy periods, one of the only alternative methods of confining migrants who arrive with children, has now been ruled out by the court in Los Angeles.
Trump faces similar plight as Obama
Trump now faces the same dilemma President Barack Obama’s administration confronted when Central American migrants began surging across the southwest border in 2014. After exploring options for longer-term detention — including their own attempt in 2015 to amend the Flores agreement — Obama administration officials eventually permitted many migrant families to be released with orders to appear in court, with judges often imposing additional restrictions such as bond or ankle monitoring devices.
In her ruling, Gee said the Trump administration’s petition to amend the Flores agreement, both by allowing longer-term detention of families and providing for housing them in facilities other than those licensed by child welfare agencies, raised no significant new argument that Obama administration lawyers had not already tried unsuccessfully.
She rejected the contention that the court’s refusal to amend the agreement in 2015 had spurred thousands of new migrants to flock toward the United States, believing they could avoid detention if they arrived with children.
“Any number of other factors could have caused the increase in illegal border crossings, including civil strife, economic degradation, and fear of death in the migrants’ home countries,” the judge wrote.
Lawyers who opposed any change to the original decree applauded the ruling.
“The court clearly finds that the attorney general’s efforts to strip detained immigrant children of their fundamental rights were completely unfounded and based on an intentional misreading of the 1997 Flores agreement,” said Peter Schey, president of the Center for Human Rights and Constitutional law, who was a co-lead counsel on the initial lawsuit, which was filed in 1985.
Right to ‘prompt release from custody’
Contrary to assertions from the Trump administration, Schey said, nothing in the Flores agreement required separation of families. “The settlement has offered detained children the right to humane treatment and reasonably prompt release from custody, unless they are a flight risk or a danger, for some 20 years without incident,” he said.
The Justice Department said in a statement that it was reviewing the court’s ruling.
“We disagree with the court’s ruling declining to amend the Flores Agreement to recognize the current crisis of families making the dangerous and unlawful journey across our southern border,” the department said, “but the court does appear to acknowledge that parents who cross the border will not be released and must choose between remaining in family custody with their children pending immigration proceedings or requesting separation from their children so the child may be placed with a sponsor.”
In preparation for Tuesday’s family reunifications, most parents have already been transferred to detention facilities in the vicinity of where their children are currently held, Sarah B. Fabian, a Justice Department lawyer, said in court Monday. She said federal Immigration and Customs Enforcement will oversee the transfers.
“The children will be brought to an ICE location where the parents are. ICE will assume custody and then release the parent and children together,” she said. “We have agreed it is best to not talk publicly about location too much for the safety of children, to ensure the orderly and safe release for everyone.”
Judge Dana M. Sabraw of the U.S. District Court in San Diego had set a deadline of Tuesday for the youngest children to be returned, but government lawyers said Monday that of 102 such children now in government custody, authorities have been able to identify, locate and vet the parents of only 54. The court order requires all 3,000 children to be returned to their families before the end of the month.
Scattered around the country
A person familiar with the reunification plan said managers at the sites where younger children are being housed have been instructed that they are to put the children in vans on Tuesday and take them to locations that are as yet unknown to them.
The 54 children are scattered around the country, and the operation calls for the children to be driven to nearby locations in different states, where they will be handed over to Homeland Security officials. The children will be reunited with their parents or relatives there, or will be taken to nearby ICE facilities for the reunifications.
The plan for Tuesday was unusual not only for its secrecy, but for its oversight: The Department of Homeland Security is not typically involved directly in family reunifications. Until now, most such reunifications have occurred at migrant youth shelters, many of which are run by contractors. Those contractors, however, do not appear to be actively involved in the reunifications planned for this week.
“This is new ground being plowed,” said the person familiar with the plan, who asked not to be identified in order to speak freely.
The government has tapped two faith-based organizations to support families during and after the reunions. But they have also been tight-lipped about details out of concern over potential protests and a potential large news media presence.
The operation comes in response to a lawsuit filed by the American Civil Liberties Union, which last month won a preliminary injunction ordering speedy reunification of migrant families separated under the “zero-tolerance” policy on border enforcement that was put into place in May.
Amid mounting political pressure and public outrage, Trump issued an executive order on June 20 ending the separations.
Sabraw did not grant the government’s request to extend Tuesday’s deadline for returning all children younger than 5, but during the court conference Monday, he said he recognized that some cases “will necessitate additional time.”
Process fraught with obstacles
Fabian told the court that nine parents of children who are younger than 5 have been deported, making immediate reunification difficult. In the case of nine others, the parents have been released and their locations are unknown, she said. Other parents have criminal records that prevent the families from being reunited, Fabian said.
The children have been housed in shelters from California to New York, licensed by the Health and Human Services Department. Fabian said these families will not remain in detention once they are reunited. The government has limited family-style detention space compliant with standards under Flores. The three family detention facilities, two in Texas and one in Pennsylvania, can hold about 3,000 people.
But Trump said in his executive order that the government intended to keep families detained together, and tent camps and other facilities are being prepared to accommodate thousands of them.
The Justice Department said in a statement Monday that the administration had “worked tirelessly” since the latest court conference Friday “toward the shared goal of promptly reunifying families while ensuring the safety of the children.”
The government announced last week that it would be using DNA testing to expedite confirmation of familial ties between adults coming forward to claim children, given that several agencies had been involved in the separation of families and that databases were not complete.