President Trump Reverses Policy Separating Immigrant Families and Seeks Indefinite Family Detention

President Trump signed an executive order “Affording Congress an Opportunity to Address Family Separation,” reversing his administration’s prior policy separating children from their parents at the border. This order instructs the Department of Homeland Security (DHS) to take measures to detain family units without separating children from parents during pending criminal improper entry or immigration proceedings by ordering the Department of Justice (DOJ) to revise the 1997 Flores Settlement Agreement.

Illegal entry at the US border is a crime and criminal proceedings require the separation of parents from their children. However, the Obama Administration asserted prosecutorial discretion and waived criminal prosecution for immigrants with children at the border so as to keep them together.

The Flores Settlement sets national standards regarding the detention, release and treatment of all children in immigration detention and strictly limits the government’s ability to keep children in immigration detention. It requires that children be released from custody without unnecessary delay and to place them with a close relative or family friend, and where they cannot be released because of significant public safety or flight risk concerns, be held in the least restrictive conditions possible. In 2015, an appellate court further restricted detention to 20 days pursuant to the Flores Settlement.

Flores mandates that release be the default except:

  1. Where the detention of a child is necessary to ensure his or her appearance in immigration court; or
  2. Where the continued detention of the child is required to ensure his or her safety or the safety of others.  When HHS cannot find a suitable sponsor for a child, that child remains in the custody of HHS.  Flores mandates the minimum conditions that child must be held in.

The Trump Administration has also filed a suit in the Federal District Court in Los Angeles to modify the Flores Settlement to allow immigrant families to be detained indefinitely (and overturn the 20-day rule) in US Immigration and Customs Enforcement (ICE) facilities until their asylum cases are granted or they are ordered deported and to exempt such facilities from state licensure requirements.

Long-term detention of families is not the appropriate solution to family separations, since the children will still suffer inordinate trauma and there are more humane and cost efficient and effective alternatives. The Family Case Management Program, terminated by President Trump, allows families to be released together and monitored by caseworkers and this has yielded a 99% success rate of court attendance.