One of the things that rarely gets brought up in terms of familial separations at the border is what’s known as the Flores decision.
As part of a 2015 court ruling that grew out of the Flores settlement in 1997, children could only be detained by border authorities for 20 days until the children would either have to be separated from the parents or the family unit would be let go — the “release” part of the “catch and release” moniker.
On Wednesday, the Trump administration plans to make arguably the biggest move to challenge that 2015 decision.
According to a Tuesday night report from Politico, a source within the Department of Homeland Security says that a new regulation being adopted by the administration would allow DHS to keep family units with minors detained together for longer periods of time than 20 days.
“The final rule, which will likely require court approval before it becomes effective, outlines standards for the care of migrant children and families in the custody of federal immigration authorities,” Politico’s Ted Hesson reported.
“It aims to change licensing requirements for family detention centers and remove a 20-day limit on the detention of children set by a judge enforcing the 1997 Flores settlement agreement, according to a draft version released in September 2018.”
Hesson reported that the “regulation would permit the Homeland Security Department to license family detention centers and aims to supersede a requirement in the Flores agreement that calls for family detention centers to be state-licensed, according to the draft measure. States lack those procedures, limiting the government’s ability to hold families together.”
“The administration contends the licensing change would permit the lengthy detention of children with their parents beyond the current 20-day limit.”
ABC News, which broke the story, reported that the White House believes it can “terminate” some of the provisions of the Flores agreement if it comes up with its own regulations on issues, issues presumably like the licensing change.
The new policy would, of course, trigger an avalanche of court challenges, but the need for something to be done is clear.
Critics of Flores, the Washington Examiner’s Paul Bedard notes, have long maintained that the settlement creates incentives for human smugglers to put together “fake families” — adults paired with minors who aren’t their children who are then released from custody along with the minors.
“From mid-April through the end of May this year, 1,126 families apprehended at the southern border presented indications of lying about being a family, according to acting ICE Director Mark Morgan,” the network reported.
“Of those, 206 fraudulent cases had been identified, though it’s unclear what the circumstances were that deemed each case as fraudulent. According to ICE, in some cases children were used to get into the US and then returned south to then accompany another migrant.”
While it didn’t necessarily say that Grassley’s comment that migrants were “renting babies” to cross the border passed muster — contending most of the cases involved teens — CNN did acknowledge there were cases where even infants had been used to create “fake families” by migrants to try and obtain quicker release.
“Last month, Border Patrol agents apprehended a Honduran man crossing the Rio Grande River from Mexico into Texas with a 6-month-old baby, according to a complaint in the US District Court for the Southern District of Texas,” CNN reported.
“ICE Homeland Security Investigations interviewed the man, Amilcar Guiza-Reyes, after finding that he was using fraudulent documents, the complaint says, and he conceded that the child was not his.
“On Wednesday, ICE announced that a Honduran man was charged with allegedly smuggling a 3-year-old boy into the US. The man claimed the boy was his son and presented a fake birth certificate, according to charges.”
A pilot DNA testing program at the border found that nearly one-third of “parents” weren’t related to their “children,” it was reported in May.
Critics of Flores say the Trump administration’s move could be a major step forward.
“This fix is arguably the single most important of the series of interlocking actions the Trump administration has taken to address the border influx,” Jessica M. Vaughan, director of policy studies for the Center for Immigration Studies, told the Bedard in the Washington Examiner piece.
“This will make a big difference; one of the main incentives for people to come illegally with kids has been the guarantee of release after no more than a brief detention, and this will untie the government’s hands, and ensure humane treatment of the migrants as well.
“It was ludicrous that a single, overzealous judge has facilitated this influx, which has caused so many problems in so many American communities, so Trump is right to step in and negate her interpretation.”
The last attempt to make any serious headway on modifying Flores by the Trump administration to allow long-term detention of minors, however, was struck down in July of 2018 by U.S. District Court Judge Dolly Gee.
Gee is the same judge who imposed the 20-day limit on detaining children in the 2015 case.
“Defendants seek to light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat,” Gee, an Obama appointee, wrote in the 2018 decision, according to Politico.
“It is apparent that Defendants’ Application is a cynical attempt … 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.”
Will this attempt to modify Flores meet a different fate? It’s difficult to know quite yet. One thing is for certain, though: Greenland probably isn’t going to be the main topic of discussion on Wednesday.
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