By Madison Woschkolup
On September 27, 2019, U.S. District Judge Dolly Gee for the Central District of California blocked the Trump administration from enacting a new regulation that would allow migrant children to be held in detention centers indefinitely.[1] The regulation, which is several hundred pages long, was proposed in Fall 2018 and would specifically abolish the 20-day limit on detaining families in immigration jails as well as establish new minimum standards for the detention center conditions.[2]
The 20-day limit on family detention has existed since 2015 and stemmed from a 1997 court-ordered consent decree known as the Flores Settlement Agreement.[3] The Flores Agreement is a product of a 1985 class-action lawsuit concerning the release of minors in immigration custody and the minimum standards of treatment while in custody.[4] Ultimately, the Supreme Court of the United States heard the case, Reno v. Flores,[5] and ruled in favor of the government, holding that minors in immigration custody may only be released to a parent, legal guardian, or other related adult.[6] Following Flores in 1997, the parties came to a court-supervised stipulated settlement agreement, which established guidelines for the treatment of minors in immigration detention centers.[7] This agreement came to be known as the Flores Agreement. Not only did the Flores Agreement set forth minimum standards for detention center conditions, but it also mandated that the government release children from immigration detention “without unnecessary delay.”[8] In 2015, Judge Gee interpreted the term “without unnecessary delay” to mean no more than 20 days[9], thus establishing the 20-day limit for detaining minors in immigration detention facilities that are not licensed by the states to care for minors.[10]
The Department of Homeland Security and the Department of Health and Human Services issued the new rules, seeking to supersede the Flores Agreement and eliminate the 20-day limit.[11] The Trump administration’s goal with the new regulation is deterrence. However, critics of the new rule say it promotes President Trump’s isolationist paradigm, and will effectively “close off the United States from the rest of the world.”[12] The regulations would have dramatically increased the Trump administration’s ability to keep migrant children detained for indefinite periods of time[13] and could have also allowed the government to avoid having to license the detention facilities.[14]
Currently, federal immigration detention centers must be licensed by states, but under the proposed regulations the centers would only have to meet standards set by Immigration and Customs Enforcement.[15] Administration officials have said that the new regulations would fulfill the goals set forth by the Flores Agreement for protecting children, ensuring that children in custody are “treated with dignity and respect” but would allow the government to detain families until their asylum cases were decided.[16] However, because there are over one million pending cases in immigration court, it can take years for asylum cases to be decided.[17] Tough immigration policies have become a hallmark of Trump’s presidency and the proposed regulations are just one piece of the administration’s plan to reduce the number of Central American families and unaccompanied minors entering the United States through the southern border.[18] In fact, President Trump asserted that the regulations would “make it almost impossible for people to come into our country illegally.”[19]
Administration officials defend the proposed regulations, claiming that by allowing families to be detained indefinitely, it would reduce the possibility of the family’s being separated or would potentially allow migrants to be released while they wait for their court dates.[20] Kevin K. McAleenan, acting Secretary of Homeland Security, says that the regulations “restore integrity to our immigration system” and would provide high standards of care for migrant children.[21] President Trump has characterized the Flores Agreement as a “loophole” that enables families to cross the southern border, claim asylum, and be released into the United States quickly due to the 20-day detention limit.[22] Immigration rights advocates have criticized the new regulation and accused the Trump administration of purposely treating families and children poorly in an attempt to curtail the flow of immigration to the United States.[23] Madhuri Grewal, the federal immigration policy counsel for the American Civil Liberties Union, calls the regulations a “cruel attack on children, who the Trump administration has targeted again and again with its anti-immigrant policies” stating that Congress must not fund the regulation.[24]
Judge Dolly Gee issued the permanent injunction only hours after hearing oral arguments from the Justice Department and immigration advocates,[25] preventing the regulations from going into effect. In briefs filed before Judge Gee, the U.S. government argued that because immigration has changed since the Flores Agreement was first established, the agreement itself has led to an increase in immigration to the United States.[26] In response, lawyers opposing the new rule argued that the government was attempting to “light a match” to the Flores Agreement by using a multitude of claims which had already been rejected by federal courts.[27] In her ruling, Gee noted that the regulations “fail to implement and are inconsistent with the relevant and substantive terms of the Flores Settlement Agreement,”[28] and described the government’s defense of the new regulations as “Kafkaesque.”[29] The 1997 Flores Agreement is binding on the federal government agencies, and “defendants cannot simply ignore the dictates of the consent decree merely because they no longer agree with its approach as a matter of policy.”[30] Because the Flores Agreement is a binding contract, in order to supersede it the government would either have to show that a change in law or facts has rendered their compliance illegal or impossible, or Congress would have to change the law.[31] Gee stated that “having failed to obtain such relief, Defendants cannot simply impose their will by promulgating regulations that abrogate the consent decree’s most basic tenets.”[32]
Holly Cooper, one of the attorneys representing the migrant children in the case described Gee’s ruling as an “enormous victory for migrant children in this country”[33] while a spokesman for the government claims the Flores Agreement is “outdated” and says the Trump administration will “continue to work to . . . ensure the proper functioning of the duly enacted immigration laws.”[34] Stephanie Grisham, White House Press Secretary states that the ruling “perpetuates the loophole that this same judge created, which has been exploited by criminal cartels to smuggle children across the United States southern border.”[35] Rep. Joaquin Castro (D-Tex.) disagrees that Flores is a loophole, but rather a “lifesaving standard that protects the basic rights and dignity of migrant children.”[36] The Flores Agreement is what allowed attorneys to visit Border Patrol facilities earlier this year and report on children who were being held without access to soap and toothbrushes.[37]
Although no mention of an appeal has been made, the option
is available to the government within the 9th Circuit Court of Appeals.[38] An appeal is widely expected, and could
eventually result in the Supreme Court being asked to weigh in.[39]
As of now, the Flores Settlement
Agreement “remains in effect and has not been terminated.”[40]
[1] Maria Sacchetti, Federal Judge Blocks Trump Administration from Detaining Migrant Children for Indefinite Periods, Wash. Post (Sept. 27, 2019), https://www.washingtonpost.com/immigration/federal-judge-blocks-trump-administration-from-detaining-migrant-children-for-indefinite-periods/2019/09/27/49a39790-e15f-11e9-b199-f638bf2c340f_story.html.
[2] Michael D. Shear & Zolan Kanno-Youngs, Migrant Families Would Face Indefinite Detention Under New Trump Rule, N.Y. Times (Aug. 21, 2019), https://www.nytimes.com/2019/08/21/us/politics/flores-migrant-family-detention.html?action=click&module=RelatedLinks&pgtype=Article.
[3] Id.
[4] Complaint, Flores v. Meese, 681 F.Supp. 665 (C.D. Cal. 1988) (No. CV 85-4544-RJK).
[5] 113 S.Ct. 1439 (1993).
[6] Id. at 1442.
[7] Rebeca M. López, Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant Children in U.S. Custody, 95 Marq. L. Rev. 1635, 1648 (2012).
[8] Matthew Sussis, The History of the Flores Settlement, Center for Immigration Studies (Feb. 11, 2019).
[9] Graham Kates, White House Effort to Change “20 Day Rule” for Migrant Detention Faces Tough Odds, Lawyers Say, CBS News (Apr. 10, 2019).
[10] Sacchetti, supra note 1.
[11] Id.
[12] Shear & Kanno-Youngs, supra note 2.
[13] Sacchetti, supra note 1.
[14] Shear & Kanno-Youngs, supra note 2.
[15] Shear & Kanno-Youngs, supra note 2.
[16]Miriam Jordan, Judge Blocks Trump Administration Plan to Detain Migrant Children, N.Y. Times (Sept. 27, 2019), https://www.nytimes.com/2019/09/27/us/migrant-children-flores-court.html.
[17] Id.
[18] Sacchetti, supra note 1.
[19] Shear & Kanno-Youngs, supra note 2.
[20] Id.
[21] Id.
[22] Sacchetti, supra note 1.
[23] Shear & Kanno-Youngs, supra note 2.
[24] Id.
[25] Sacchetti, supra note 1.
[26] Graham Kates, Migrant Detention Ruling: Judge Blocks Government Effort to Indefinitely Detain Migrant Families, CBS News (September 27, 2019), https://www.cbsnews.com/news/migrant-detention-ruling-judge-blocks-government-effort-to-indefinitely-detain-migrant-families-today-2019-09-27/.
[27]Id.
[28] Sacchetti, supra note 1.
[29] Jordan, supra note 14.
[30] Daniella Silva, Judge Blocks Trump Administration from Indefinitely Detaining Migrant Children, NBC News (Sept. 27, 2019).
[31] Id.
[32] Id.
[33] Id.
[34] Sacchetti, supra note 1.
[35] Id.
[36] Id.
[37] Jordan, supra note 14.
[38] Silva, supra note 28.
[39] Jordan, supra note 14.
[40] Cooke, supra note 8.
