Justice Department Confirms Going Forward Children Can Remain in DHS Custody With Parents, Unless Parents Want Child Released

U.S. Border Patrol agents take a father and son from Honduras into custody near the U.S.-Mexico border on June 12, 2018 near Mission, Texas. (Credit: John Moore/Getty Images)

U.S. Border Patrol agents take a father and son from Honduras into custody near the U.S.-Mexico border on June 12, 2018 near Mission, Texas. (Credit: John Moore/Getty Images)

The Trump administration outlined for a federal judge Friday how it plans to implement a pair of court orders central to the ongoing reunification of parents separated from their children at the border and family detentions going forward.

From now on, adult parents who cross the border illegally will face a stark choice: either keep their children with them in detention facilities or consent to have the children released into the care of the Office of Refugee Resettlement without them.

The Justice Department’s agreement with the American Civil Liberties Union on this issue, which was largely previewed by lawyers at a court hearing Tuesday, was jointly detailedin a court filing Friday ahead of a hearing in San Diego.

If a parent is provided these two choices and does not select either one, “the Government may maintain the family together in family detention and the (parent) will be deemed to have temporarily waived the child’s release rights,” according to the court filing.

The parties’ proposal “provides that in neither circumstance do this Court’s orders create a right to release for a parent who is detained in accordance with existing law.”

US District Judge Dana Sabraw in San Diego must now approve the proposal. If he signs off, the agreement will put to rest one of the outstanding questions about how the Trump administration would avoid a wholesale return to a policy of “catch and release” of immigrant families into the US — a practice that President Donald Trump and other administration officials have routinely condemned — when faced with a decades-old court order restricting the detention of children indefinitely.

But the plan for what happens to migrant children going forward will likely turn renewed attention to the length of time their parents may reasonably be detained if they do not present a danger or flight risk.

Last month, as the outcry grew over family separations, Trump administration officials continually said their hands were tied.

“Under current law and legal rulings,” Justice Department lawyers wrote in a court filing last month, “it is not possible for the US government to detain families together during the pendency of their immigration proceedings. It cannot be done.”

The culprit in their view was a 1997 settlement agreement in Flores v. Reno and subsequent court rulings, which officials said limited the detention of immigrant children to 20 days, and so they couldn’t legally be held with their parents who might be easily detained for months or longer.

US District Judge Dolly Gee, who currently oversees enforcement of the Flores settlement, rejected the Justice Department’s request to modify the agreement, and also said the government had set up a false choice.

“Absolutely nothing prevents Defendants from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion,” Gee wrote in a new order Monday.

Yet she also confirmed that parents may waive their children’s right to “prompt release and placement in state-licensed facilities,” two key requirements of the Flores settlement.

The Obama administration faced a similar crossroads with an influx of Central Americans but opted to not to separate parents from their children, and instead released families into the US with electronic monitoring and follow-up court dates. The Trump administration opted for “zero tolerance” of illegal border crossings, vowed to prosecute all adults and then forcibly took their children away.

As the backlash grew and Trump signed an executive order to keep families together, Sabraw, the judge in San Diego, forced the administration’s handordering reunification of all children on a tightly proscribed timetable.

The issue for the administration was how to read the two court orders together. The concern, expressed by the Justice Department this week, was that adults would try to bootstrap their rights to stay together with their children under Sabraw’s order to their children’s right to avoid indefinite detention under the Flores settlement.

Friday’s joint filing from Justice Department and the ACLU makes clear that nothing under Flores or Sabraw’s decision requires the government to release the parents, but that could be the next avenue of litigation down the road.