As the Trump administration slowly works to reunite most, but not all, of the thousands of migrant parents and children it forcibly separated, there is a growing call from Republicans and administration officials to keep immigrant families locked up for the entirety of their bids for asylum or legal status, which could take months or years.
Detaining children for more than 20 days is currently illegal, but the GOP is considering several approaches to make it happen. On Capitol Hill, Republicans have introduced multiple bills that would repeal the decades-old legal protections for children in immigration facilities and allow for indefinite family detention, and ICE officials asked Congress directly on Tuesday to pass them.
“Give us the authority to hold the family as a family unit during the pendency of their immigration removal proceedings,” ICE Executive Associate Director Matthew Albence said.
The administration could also attempt to chip away at Flores through the agency rule-making process, and while a federal judge recently rejected the Trump administration’s motion to overturn the Flores settlement, which created those legal protections, officials said Tuesday that they may appeal that ruling.
On Tuesday, at the first and possibly only congressional hearing on the family separation crisis, Republican senators repeatedly called for the repeal of Flores — a consent decree dating back to the mid-1990s and upheld in 2016 that stipulates that immigrants younger than 18 years old can’t be held in immigration custody for longer than 20 days. The settlement also set standards for the food, medical care and other conditions for migrant children in detention, and said the government can’t hold them in facilities that fail state child welfare licensing regulations.
In this past week alone, as reports of sexual assault and other abuses in immigration detention have surfaced, federal courts moved to appoint an independent monitor to oversee the shelters holding migrant children, and to order all separated children removed from a Texas shelter reported to be drugging children without their parents’ consent.
These rulings would not have been possible without Flores, said Neha Desai of the National Center for Youth Law, the main legal group arguing for the enforcement of the settlement.
“It’s a crucial piece of protection for this extraordinarily vulnerable population, and it provides a clear mechanism for enforcement,” she told TPM. Desai added that while attorneys could still bring lawsuits around abuse of children in detention without Flores, “litigating every new issue that arises under the Constitution would be far more onerous” and those cases more difficult to win.
But Sen. Ted Cruz (R-TX), one of several GOP lawmakers currently crafting a bill to overturn Flores, said repealing the protections and indefinitely detaining families would be the best alternative to the forced separations.
“There is widespread agreement in Congress, on both sides of the political aisle, that families should not be separated, that the best place for children is with their parents,” he said. “At the same time, it’s imperative that we enforce the law, that we not be adopting policies that effectively mandate ‘catch and release’ because that only serves to attract more people here illegally.”
Cruz characterized past administrations’ policy of releasing immigrant families on parole while they await their immigration or asylum hearings — often with ankle monitors — as “catch and release,” a hunting and fishing term Democrats say is offensive and dehumanizing. There is also no evidence to support his claim that the Flores protection “serves to attract more people here illegally,” or that repealing it would, according to Sen. Lindsey Graham (R-SC), “deter some people from bringing their children here.”
When the Trump administration tried to make that claim in federal court, in their motion to overturn Flores, U.S. District Judge Dolly Gee disputed it in strong terms.
“Defendants’ reasoning suffers from the ‘logical fallacy of post hoc, ergo propter hoc.’ Literally, ‘after this, therefore because of this,'” she said. It is much more likely, she added, that the recent uptick in Central American migration is caused by “civil strife, economic degradation, and fear of death in the migrants’ home countries.” Additionally, she ruled that the evidence the administration cited “failed to show that detaining families would deter future illegal border crossings.”
Still, Cruz and other Senate Republicans, and the Trump administration testifying Tuesday, continued to make two unfounded claims: that the Flores protections incentivize family migration and that the majority of immigrant families released on parole never show up for their court dates.
“Most times we don’t see them again,” Albence told the committee.
The data do not support this assertion. As Gee wrote in her ruling upholding Flores: “Executive Office of Immigration Review data shows that between 2001 and 2016, 86 percent of family detainees attended all of their court hearings.”
When Graham asked Albence directly how many parents released on parole appear at their immigration hearings, admitted he did know the exact number but asserted inaccurately that it is “a small percentage.”
The abolition of the Flores standard is something the administration has long sought.
Back in January, the White House put out a press release calling Flores a “deadly loophole” that “handicapped the government’s ability to detain” immigrant children, and called on Congress to overturn it. They kept up the drumbeat all year, complaining in statements issued in February, March, April, May and June about “loopholes in federal immigration law that Democrats refuse to close.”
It’s unlikely, however, that a bill to repeal Flores can pass in the Senate, where Democrats have compared the move to the establishment of “internment camps.”
And while the administration has not yet announced whether it will appeal Gee’s ruling and continue to fight in court to overturn Flores, Albence said Tuesday that they are keeping that door open and exploring their legal options.
The administration can, however, keep some families with children detained indefinitely while leaving Flores intact — by asking parents who wish to remain together with their children to waive their child’s Flores rights to be in a detention center longer than 20 days. Those who do not sign such a waiver may be separated once again.