Trump Deputies Look To Shatter Obama Legacy by Shutting Down 'Catch and Release' Loophole


The Trump administration plans to modify the the 1997 court agreement that only allows children who immigrate illegallyto be detained for 20 days in order to deter individuals from bringing children over the border, Fox News reported, potentially shattering a major part of the Obama legacy.

“The Homeland Security Department announced proposed regulations that would terminate the so-called Flores agreement that requires the government to keep children in the least-restricted setting and required their release generally after 20 days in detention,” Fox reported

“The 1997 case that spawned the agreement will almost certainly land back in court. U.S. District Court Judge Dolly M. Gee rejected a request by administration lawyers this summer to allow for longer family detention.”

The Flores agreement became a major issue earlier this year when it emerged that over 2,900 children were separated from their families because of the Trump administration’s “zero tolerance” policy for those caught illegally crossing the border.

After a modification in 2015, Breitbart reported, the Flores agreement essentially became a “catch and release” program since the Obama administration allowed individuals to seek asylum based solely on a “credible fear” of returning to their country.

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Since asylum claims generally take 45 days to process at the very least, families (and individuals who crossed with children) were let go.

Roughly 370,000 individuals were let go under this policy between 2015 and 2017.

A request to modify the Flores agreement was denied in July.

“Defendants seek to light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat,” Judge Dolly Gee, an Obama appointee, said in her ruling, according to Breitbart.

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“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.”

The new modification would close that catch and release policy.

“Today, legal loopholes significantly hinder the department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country,” Homeland Security Secretary Kirstjen Nielsen said Thursday, according to Fox.

“This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress.”

The new rules would likely require time to implement; while the federal government operates three detention centers specifically for families, all of them are working at capacity. The Department of Homeland Security has asked for an additional 12,000 beds for families, although there have been roadblocks to getting that space available.

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The liberal reaction to the Trump administration’s move was predictable. Take a look, for instance, at the first paragraph of The New York Times‘ story on the matter: “The Trump administration moved on Thursday to remove court-imposed time limits on the detention of migrant children, proposing to end 20 years of judicial oversight and allow families to be held indefinitely in secure facilities as their cases wend through the immigration courts.”

Or The Washington Post’s: “The Trump administration took the first official step Thursday toward withdrawing from a court agreement limiting the government’s ability to hold minors in immigration jails, a move that could lead to the rapid expansion of detention facilities and more time in custody for children.”

Nobody seems to pay attention to the perverse incentive for potential illegal immigrant parents that the Flores agreement creates: That of marching their children across inhospitable terrain, probably with the help of a smuggling cartel, in order to have them enter a country illegally. And that’s not even counting the numerous reports of people bringing along unaccompanied minors to take advantage of the loophole.

The “catch and release” policy is is almost an anti-deterrent to abhorrent human behavior. If you don’t want familial separations, housing families together at appropriate detention facilities is the only realistic way to do it.

The Flores agreement — and particularly the Obama-era modification to it — ought to be history. Will the courts agree? Stay tuned.

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C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014.
C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014. Aside from politics, he enjoys spending time with his wife, literature (especially British comic novels and modern Japanese lit), indie rock, coffee, Formula One and football (of both American and world varieties).
Morristown, New Jersey
Catholic University of America
Languages Spoken
English, Spanish
Topics of Expertise
American Politics, World Politics, Culture