A federal judge in California on Monday flatly rejected the Justice Department’s attempt to modify a decades-old settlement agreement that limits the length of time and conditions under which US officials may detain immigrant children.
In a strongly worded order, US District Court Judge Dolly Gee called the Justice Department’s request “wholly without merit” and found “absolutely nothing prevents (the Trump administration) from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion.”
Last month, the Justice Department sought to modify an agreement in Flores v. Reno, saying they were bound by a prohibition that restricted the detention of immigrant children to 20 days. Department lawyers wanted Gee, who signed the operative decision in the case, to modify that rule to give the Trump administration maximum flexibility in handling family units, because officials want to detain the parents not only until the end of any criminal proceedings but also through the end of any asylum proceedings, which could drag on for months. The administration also wanted relief from provisions in the settlement agreement dictating the type of licensed facilities where minors may be held.
But the judge was unmoved, calling the Trump administration’s position a false choice and tantamount to seeking to “light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat.”
The decision comes on the eve of another federal judge’s deadline to reunite all parents separated from their children under the age of five.
Gee, however, was not persuaded that the two court orders were in conflict, calling the Justice Department’s position “tortured,” and noting that both sides agreed that parents may waive their children’s rights to prompt release and some parents may consent to have their child detained with them.
“It is apparent that (the Trump administration’s request) 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,” Gee wrote. “Regardless, what is certain is that the children who are the beneficiaries of the Flores Agreement’s protections and who are now in Defendants’ custody are blameless.”
Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said the group was “thrilled” with Gee’s decision but it was not “unexpected.”
“The government had zero basis for asking that the court scrap a settlement that has been so vital to minors,” Gelernt said.
Justice Department spokesman Devin O’Malley said in a statement late Monday that department lawyers were still reviewing the decision, but signaled further legal complications could be on the horizon.
Immigration advocates have objected to any blanket detention of families, especially in cases where the parent does not present a security risk, but the Justice Department has said in court filings it should be able to detain the families together “during the pendency of any immigration proceedings” once they’re taken into custody.
“We disagree with the court’s ruling declining to amend the Flores Agreement to recognize the current crisis of families making the dangerous and unlawful journey across our southern border, but the court does appear to acknowledge that parents who cross the border will not be released and must choose between remaining in family custody with their children pending immigration proceedings or requesting separation from their children so the child may be placed with a sponsor,” O’Malley said.