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Following Yesterday’s Flores Decision, the Simple Solution is Prosecutorial Discretion and Alternative Forms of Detention

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Yet Trump administration warns of more family separation and family detention

The Trump administration suffered another defeat at the hands of a federal judge, a decision that should pave the way for asylum-seekers and their children to be released into the community, into alternatives to detention projects that have a very high rate of compliance with follow up court dates and decisions. Unfortunately, the Department of Justice is promising to coerce asylum-seeking parents into a “Sophie’s choice” where they have to decide between jail for the entire family or jail for the parent so the child can be released to a sponsor. The bottom line is this: despite workable alternatives, the Trump administration is gearing up to give asylum-seekers an impossible choice: family detention or family separation.

Yesterday, Judge Dolly Gee upheld a 20-year-old settlement agreement – Flores – that requires DHS to release children from detention within 20 days. The Trump Administration had requested the consent decree to be modified so that children could be detained for longer periods of time with their parents. The judge strongly rebuked the Trump Administration’s request to modify Flores, stating the request was a “thinly veiled motion…without any meaningful effort to comply with” court rules. She further wrote:

Defendants seek to light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat….Defendants advance a tortured interpretation of the Flores Agreement in an attempt to show that…[a different decision by another federal judge requiring family reunification resulting from Trump’s family separation policy] permits them to suspend the Flores release and licensure provisions.

…It is apparent that Defendants’ Application is a cynical attempt, on an ex parte basis, to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate. The parties voluntarily agreed to the terms of the Flores Agreement more than two decades ago. The Court did not force the parties into the agreement nor did it draft the contractual language. Its role is merely to interpret and enforce the clear and unambiguous language to which the parties agreed, applying well established principles of law. Regardless, what is certain is that the children who are the beneficiaries of the Flores Agreement’s protections and who are now in Defendants’ custody are blameless. They are subject to the decisions made by adults over whom they have no control. In implementing the Agreement, their best interests should be paramount.

In addition, Judge Gee points to smart and humane alternatives, including prosecutorial discretion, parole and release on bond: “Absolutely nothing prevents Defendants from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion.” Judge Gee also questioned the Trump Administration’s assertion that released families fail to appear at required proceedings, citing Department of Justice data showing that “86% of family detainees attended all of their court hearings.”  

As various pilot programs have shown, where there is flight risk, alternatives to detention (ATDs) are not only humane, they are successful and cost-effective.  

Despite humane, effective and cost-efficient solutions, the Trump Administration won’t back down and continues to stand by its inhumane and extremely expensive family separation policy. Responding to Judge Gee’s decision, U.S. Justice Department spokesman Devin O’Malley said;

[T]he 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.

Ur Jaddou, Director of DHS Watch, said: “Our government should not force parents to decide between family separation or indefinite incarceration with their children. This is not a ‘choice’ for parents, it is coercion. Taking kids away from their parents or locking kids up with their parents are cruel, costly and cynical policies when rational, effective, and cost-efficient strategies exist.”

David Leopold, Partner, Ulmer & Berne LLP and Counsel to DHS Watch, said: “‘Cynical.’ That’s the word Judge Gee used to describe the Trump administration’s cowardly attempt to force detained parents to choose between the trauma of having their child locked up in jail or give up their child, perhaps forever. Ugly. That is the word I use to describe a deliberate legal strategy by Trump and Company to purposely punish families and children who simply want their day in court. A real leader would not seek to punitively detain families and then turn around and blame others. He would lead with compassion, using all the tools available to him by law such as alternatives to detention in an effort to keep families together so they can get their day in court.”