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As directed by the President’s executive order issued on Wednesday, the Trump Justice Department has filed a request on Thursday to amend a federal court order – the “Flores Agreement” – to allow the administration to detain children for indefinite periods of time. Currently, such indefinite detention is in violation of Flores, which requires that children be released from immigration detention “as expeditiously as possible,” typically within 20 days.
In May, the Trump administration made two new and unprecedented policy decisions that, together, caused the separation of approximately 2,300 children.
1. Attorney General Sessions announced and DHS helped to implement a zero tolerance policy that aims to prosecute 100% of all who cross the border outside of official border checkpoints. When adults are prosecuted in federal courts (typically a misdemeanor), they are separated from their children with no regard to the serious and lasting consequences to children. As a result, DHS has been sending parents to the Department of Justice (DOJ) for prosecution and incarceration while children – newly designated as unaccompanied minors – have been sent to Health and Human Services (HHS) for care and custody.
2. The second policy choice is to indefinitely detain parents in traditional ICE detention facilities once they complete DOJ proceedings until they are deported. Under this policy, children remain in HHS custody, a system designed for children who arrive in the U.S. with no parents, and parents remain detained in adult facilities.
Outrage over this family separation policy caused the President to sign an executive order on Wednesday that, as written, purports to end family separation. But instead of reversing his two policy choices described above, the executive order continues both policies – zero tolerance and indefinite detention of parents – but then seeks to add children to indefinite detention through family detention.
Although the law allows for family detention, Flores prevents the indefinite detention of children, generally not longer than 20 days. Without an amendment to Flores, the Trump administration will be prohibited from detaining families together for longer than 20 days.
As a result of civil wars in Central America, unaccompanied children began to arrive in the United States in the 1980s and lawyers and advocates for these children alleged that children were treated inhumanely and harshly by immigration authorities. After years of litigation, the government entered into a court-ordered agreement that established standards to ensure humane treatment of unaccompanied children in then-INS custody, including a requirement that unaccompanied children should be released from detention within 5 days or “a expeditiously as possible.” In effect, the government agreed that detention is generally not a place for a child.
In 2014, and in response to increased arrivals from Central America, the Obama administration resurrected family detention. As a result of litigation challenging the detention of families, the court ruled in 2016 that the Flores Agreement not only applies to unaccompanied children, but also to children who arrive with parents. Therefore, under Flores, children must be released from detention within 20 days, even if they are initially detained with parents.
The Trump administration’s current request to amend the Flores Agreement will likely fail. Not only was this issue squarely addressed in 2015 during the most recent Flores litigation – and with arguably more substantial arguments – the Trump administration’s request for amendment is before Judge Dolly Gee, the same judge that heard the the case in 2015. As Judge Gee observed then, the DOJ “bears the burden of establishing that a significant change in circumstances warrants revision” of Flores. But in court papers filed this week, the DOJ simply failed to provide a sufficient factual or legal basis to warrant an amendment to the agreement.
If the request to amend Flores fails, under Flores children will have to be released after 20 days in family detention. The question will be what the Trump administration does in response. Will it return to its family separation policy by continuing to detain all parents without their children? Or, will it finally begin using smart, effective, and humane alternatives to detention that have high rates of compliance with immigration check-ins, hearings and removal?
According to direct legal service providers who work with immigrants and refugees:
Asylum seekers and those with credible legal claims and family and community in the United States have strong incentives to appear in immigration court and comply with requirements. Consequently, for many, release on recognizance or a minimal bond is appropriate because they pose little flight risk or risk to the community.
Where there is flight risk, alternatives to detention (ATDs) are not only humane, they are successful and cost-effective. According to the 2018 ICE budget justification, it costs $133.99 per day to hold an adult immigrant in detention and $319.37 for an individual in family detention, whereas ATDs only cost an average of $4.50 per day. A 2014 GAO study found that the ATD daily rate was less than 7% of the daily cost in detention.
Depending on the facts in each case, there are multiple and effective ATDs to ensuring “high rates of compliance with immigration check-ins, hearings and – if ordered – removal.” Some options include GPS monitoring devices, in-person reporting or telephonic check-ins.
Here are some facts that support the use of community-support ATD models:
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
Instead of using alternatives to detention which ensure family unity, are cost-effective, and have high rates of compliance, Trump insists on draconian detention for all, including families with young children. Trump likely knows that attempts by his administration to amend Flores to allow for indefinite detention of families will fail. But that could lead to the President using the same talking point he has been using all along: the courts and Congress are to blame for this situation and they have to bend to his will in order to end it. At the same time, Republicans in Congress are trying to exploit public concern in this moment to enact legislation that requires indefinite family detention and decimates asylum protections. Arguably, this was Trump’s strategy all along: create a crisis, hold kids hostage, pressure the courts to allow him to detain families indefinitely and pressure the Congress to codify it in legislation. The crisis that Trump provoked is far from over.