Coming to America Pt. 9: Figuring Out Family Separation
May 2018 — Trump Administration announces prosecution of undocumented parents who cross the border with their children:
The detainment of undocumented immigrants and asylum seekers at the border in massive, fenced areas and facilities was not new under the Trump administration. The Obama administration had built them as holding centers for an influx of asylum seekers in 2014. However, before Trump’s zero-tolerance policy, the prevailing model of operation was to “catch and release.” Undocumented immigrants caught crossing the border were not held for prosecution but instead released into the community pending their hearings in immigration court. Trump was critical of this approach, and his policy called for parents to be separated from children and held until their case was finalized.
It’s a bit of a misconception that separating children from their parents was a direct result of Trump’s policy. The tragic situation was the combined secondary effects of multiple court decisions going back to 1997. In 1997, several activist groups sued the INS regarding the conditions of detained undocumented immigrant children in a class-action lawsuit. The outcome was the court settlement known as the Flores Agreement. The agreement stipulated three vague terms that the INS had agreed to comply with:
1. The government would release children “without unnecessary delay” to (in order of preference) the children’s parents, legal guardians, other adult relatives, or another individual designated by the parents/guardians.
2. The government would put children in the “least restrictive” setting appropriate.
3. The government would create and implement standards for the care and treatment of immigrant children in detention.
This settlement has held the force of law even after the dissolution of the INS in 2002. In 2015, the “without unnecessary delay” component of the Flores Agreement was interpreted by Federal District Court Judge Dolly Gee to mean that the government could not hold minors for more than 20 days. Functionally, what this meant then was that if an undocumented family was held in a government facility for longer than 20 days while awaiting trial in immigration court, children had to be separated from their families.
It’s critical to understand that Trump’s zero-tolerance policy only applied to those caught crossing the border without documentation. Those requesting asylum as ports of entry were not subject to separation or prosecution. Also, those caught crossing the border were still eligible to apply for asylum.
In June 2018, Trump signed an executive order directing DHS to keep detained families together and calling the Department of Defense to provide housing for families when detention centers are a capacity. He also called for the federal district court to modify the terms of the Flores agreement so that families could be kept together for the duration of their detention. However, this request was denied by Judge Dolly Gee, stating in her permanent injunction that,
the court is not unsympathetic to the challenges that Department of Homeland Security and Health and Human Services employees face in executing our country’s immigration policies. But the evidentiary record before this court overwhelmingly shows that throughout several presidential administrations, the agreement has been necessary, relevant, and critical to the public interest in maintaining standards for the detention and release of minors arriving at the United States’ borders,[1]
The suspension of the “catch-and-release” policy combined with the upholding of Flores to make an American tragedy; children were routinely separated from their families at the border. However, this year the Department of Justice has rescinded the “zero-tolerance” policy. As a result, judges are once again able to utilize individual and particular discretion related to detaining the undocumented as opposed to being mandated to detain all undocumented immigrant adults.
Resources:
[1] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL: Jenny L. Flores, et al. v. William P. Barr, et al. : IN CHAMBERS — ORDER RE PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT [516] AND DEFENDANTS’ NOTICE OF TERMINATION AND MOTION IN THE ALTERNATIVE TO TERMINATE THE FLORES SETTLEMENT AGREEMENT. (Sept 27, 2019). P. 21
