How Separating Families At The Border Is A (Somewhat) New Effect Of Old Government Policy [Part 2]

In light of recent developments, let’s start from the top and work our way back to where we last left off.

President Trump’s Executive Order Wont Last Long

On Wednesday, President Trump signed an executive order which was designed to achieve two ends: (1) in accordance with the law, the order calls for the continued prosecution of those who are illegally crossing the border; (2) in accordance with a more moral policy of enforcement, the order also calls for families that are involved in such prosecutions to be kept “together where appropriate and consistent with law and available resources.”

In the spirit of achieving these two goals efficiently, the order also instructs the Attorney General to prioritize these families’ hearings so that they may be processed as quickly as possible.

This is exactly the fix that those who have been concerned with the White House’s recent policy have been calling for over the past several days. But there is just one problem. This order will very quickly be struck down in court as illegal. Like all executive orders, this document does not substantively change our laws, it merely instructs executive agents to enforce our laws in a different manner. However, there is simply no getting around the fact that the enforcement being ordered here will run in direct contradiction of what our laws require.

The most important part of this executive order is not in fact its requirement that families remain unified, it is its call for the Attorney General to “promptly file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.” If this request is denied, this order’s enforcement power will instantaneously evaporate unless Congress moves to rewrite the Flores Settlement itself.

What is this settlement agreement? And why does the president’s entire executive order depend on it?

To answer those questions, let’s go back to where we left of last time.

The Flores Agreement, What It Is & Why It Matters

In Part 1, we discussed a Supreme Court case from 1993 called Reno v. Flores which was a class action lawsuit involving unaccompanied minors who had been apprehended by INS. To sum this case up quickly, the Court ruled that unaccompanied minors who were awaiting their immigration hearings could not be released to anyone other than “a parent or lawful guardian, except in unusual and extraordinary cases.” Those who lacked such entities to be released to had to be housed in facilities that were beholden to state-wide standards for the care of dependent children (thus these standards applied to American children who were dependents of the government as well).

This case, which began in 1985, continued to be litigated after this Supreme Court decision (since the Court merely remanded it back down to the lower courts), and, in 1997, the two parties agreed to a class wide settlement. This ’97 agreement would later become the source of further litigation for the next 20 years.

On a macro-level, this cases’ settlement was intended to address the concerns regarding the mandatory housing of the class of unaccompanied minors who were involved in the case. The early portions of the settlement overtly stated that the agreement “constitutes a full and complete resolution of the issues raised in this action.” However, on a micro-level, the settlement’s stipulations applied to all minors who were in INS’s custody. This was a minor shift in language that would go on to have major implications for the enforcement of the country’s immigration laws, since, as the current news cycle has proven, there are minors in the custody of our immigration agencies who are not unaccompanied.

For example, section 19 of the settlement requires that minors be sent to government-sponsored care facilities until the completion of their immigration case if they are not released to relatives or other qualified guardians listed in section 14 within 20 days. This requirement makes sense in the context of unaccompanied minors who do not have accessible adults to be released to. In the context of accompanied minors, this requirement becomes a lot more problematic, because, even though such minors are with an adult, the minor can not be released to that accompanying adult because he/she is also being detained and awaiting the completion of their own immigration proceedings. Combine this reality with the strict time constraints that the settlement places on how long minors can be detained (again, 20 days), and the issues become apparent.

This is the origin of the family separation requirement. 

While the settlement was agreed to in 1997, the settlement itself became the subject of litigation which has continued through this very presidential administration. As you may have guessed, the primary point of contention in the more recent proceedings has been whether or not the settlement, which involved a class of unaccompanied minors, truly applies to all children involved in immigration proceedings.

Within recent years, the answer that has repeatedly come from the 9th Circuit Court of Appeals, one of the most left-leaning parts of our federal court system, has been that the settlement “unambiguously applies both to minors who are accompanied and unaccompanied by their parents,” and that the settlement does not “provide release rights to accompanying adults.”

Based on the way in which the settlement was written, these decisions from the 9th Circuit appear to be well founded. After all, section 10 of the settlement explicitly states that the agreement applies to “all minors who are detained in the legal custody of the INS.” And section 4, which explicitly outlines those minors who are exempt from this agreement, only provides exceptions for “an emancipated minor or an individual who has been incarcerated due to a conviction for a criminal offense as an adult” (not accompanied minors). Thus, even if the 9th Circuit wanted to exempt accompanied minors from the settlement’s requirements, it would have had to do so in defiance of some evidently contradicting language.

Why Family Separation Has Now Become A Crisis From This Old Policy?

It is entirely reasonable to ask why this immigration requirement, which has its roots in a legal agreement from over 20 years ago, is just now becoming a major problem. Under this settlement, families have been separated at the border for a significant period of time now. However, it wasn’t until the Department of Justice (DOJ) announced it’s “zero-tolerance policy” this past April that the problem began to surface in a manner that could no longer be ignored. Under this DOJ policy, which was enforced in accordance with immigration laws, the Trump administration promised to criminally prosecute all adults who illegally entered the country’s Southwest border, regardless of whether they crossed with children or not.

It is important to point out that this policy was not passed without precedent. Under President Bush, a similar policy (named Operation Streamline) was enforced and in fact expanded under President Obama. However, these previous presidents made certain exceptions for families largely through what is legally known as prosecutorial discretion.

Under these previous models of enforcing our immigration laws, families would either be kept together while awaiting their proceedings or they were simply released as a familial unit and not detained during their proceedings at all. In fact, prior to the DOJ’s announcement of its new “zero-tolerance policy,” President Trump himself released nearly 100,000 immigrants in such a manner. However, the former method, as mentioned above, was ruled by the 9th Circuit Court to be illegal under the Flores Settlement, and the latter method has proven to be incredibly ineffective of enforcing relevant immigration laws, as a disconcertingly high percentage of these released immigrants have failed to show up to their subsequent court proceedings.

Thus, our current immigration laws have placed the White House in a legally problematic position. On the one hand, if President Trump were to simply go back to the previous policy of releasing these families, he would run the risk of violating his constitutional requirement to faithfully execute the nation’s laws. On the other hand, if President Trump were to continue his “zero-tolerance policy,” families would continue to be separated in accordance with the 9th Circuit’s interpretation of the Flores Settlement. 

Don’t get me wrong, this legal conundrum is not an excuse for the president’s horrible mishandling of this situation.

From the very beginning of the DOJ’s new policy, the president should have released the executive order that he signed on Wednesday requesting that the federal courts adjust the Flores Settlement in a manner that generally prohibits family separation. Since it is incredibly unlikely the courts will alter their previous judgments, the president should have also worked with Congress from the start of the DOJ’s policy to ensure that the law would be reformed in a way that works around the federal courts’ previous rulings on the Flores Settlement. 

Of course, none of these decisions were made at the appropriate time in the appropriate manner.

Nevertheless, with the signing of Wednesday’s order, the Executive Branch has finally done what it should have done a while ago. The question remains wether the Legislative Branch will step up and do its job, because one thing is certain, the Judicial Branch, as it has had to do since the 1990s, will most likely only make matters for these families worse.

This is Part 2 of a 2 part series. Part 1 can be read here.

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