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After court rejects Trump plan to hold families indefinitely, experts see few alternatives

Ever Reyes Mejia, of Honduras, carries his son to a vehicle after being reunited and released by United States Immigration and Customs Enforcement in Grand Rapids, Mich., Tuesday, July 10, 2018. (AP Photo/Paul Sancya)

As his administration sought to extend a deadline to reunite young undocumented children with their parents Tuesday, President Donald Trump offered a blunt solution to the family separation drama that has consumed his hardline immigration agenda in recent weeks.

“Don't come to our country illegally,” Trump said before leaving the White House en route to a NATO summit. “Come like other people do. Come legally."

Assuming families do continue to attempt to enter illegally through the southern border, though, the president may need a new policy for processing them when they are taken into custody. A federal judge ruled Monday the administration’s proposed plan to detain families indefinitely as a unit violates an existing court settlement.

“They don’t have a whole lot of options, and that’s the problem,” said Ira Mehlman, media director for the Federation for American Immigration Reform.

At issue is the 1997 Flores settlement, which was intended to resolve over a decade of extensive litigation over the government’s treatment of unaccompanied minors from Central America. Under the agreement, minors cannot be held in federal detention for longer than 20 days.

Pursuant to an executive order signed by Trump on June 20, the DOJ had sought an exemption from that limit for children detained with their parents so that families could stay together in custody throughout often-lengthy immigration proceedings. Government attorneys also requested an exemption from state licensing requirements for detention facilities.

“Under current law and legal rulings, including this Court's, it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings,” attorneys wrote in court filings. “It cannot be done.”

District Court Judge Dolly Gee denied both of those requests Monday, chiding the government for a “thinly veiled motion” that relies on a “tortured interpretation” of the Flores settlement.

“It is apparent that Defendants’ Application is a cynical attempt, on an ex parte basis, 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.

According to Karla McKanders, a professor at Vanderbilt Law School and director of the Immigration Practice Clinic, the Flores settlement required the government to act in the best interest of the children, many of whom experience a “triple trauma” of fleeing violence in their home country, facing danger during migration, and then being separated from their parents once in the U.S.

“The bottom line you have to remember here is the Flores agreement was based upon volumes of expert testimony that confirmed children being detained is not the best option for them,” McKanders said.

The Department of Justice expressed disappointment with the judge’s finding.

“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,” department spokesman Devin O’Malley said in a statement Tuesday.

O’Malley emphasized that the administration is still working to find a resolution to this crisis.

“The Trump administration continues to make good faith efforts that allow us to not only enforce the law, address the crisis of illegal immigration our border, and protect our nation and its citizens, but also protect the safety of children in government care and custody,” he said.

The litigation is the result of the DOJ’s new “zero tolerance” policy of prosecuting everyone caught crossing the border illegally. While parents had often been released with their children pending court appearances in the past, the administration began processing them separately as the children were transferred to Department of Health and Human Services custody.

Members of Congress and immigrant rights groups have questioned the conditions in facilities where detained children are housed and the ability of the administration to actually locate their parents.

“This level of incompetence is unconscionable,” tweeted Rep. Bobby Rush, D-Ill., Monday.

Gee’s decision came on the eve of a deadline set in separate federal court proceedings for the administration to reunite detained children under the age of 5 with their parents. Government attorneys told District Judge Dana Sabraw Monday more than half of the approximately 100 children in that age group would likely be united with their families on time.

Sabraw found the progress encouraging, and attorneys were due back in court Tuesday to possibly set a new deadline for the remaining young children.

Attorneys cited several hurdles that have prevented action in the remaining cases, including an inability to locate parents who were already released into the U.S. or deported to their home country. In a few cases, the parents’ criminal records have prevented officials from returning children to them.

The administration also faces a July 26 deadline imposed by Sabraw to reunite all of the 2,000+ young immigrants who have been separated from their families.

In her ruling Monday, Gee suggested the logistical challenge the administration now faces is one of its own making and one it could alleviate by altering its policy.

“Absolutely nothing prevents Defendants from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion,” she wrote.

If detaining whole families indefinitely is off the table, few viable legal alternatives remain for dealing with parents and children taken into custody at the border if the zero tolerance approach continues.

To deport families immediately without court proceedings, as Trump has suggested on Twitter, would violate due process rights. To release them into the U.S. to appear in court at a later date would essentially be a return to the “catch-and-release” policies the president has often denounced. To resume separating parents from children seems untenable, given the sustained outrage it has elicited.

“They really have two options and they’re both bad, and there just isn’t an option C or an option D at this point,” said Mehlman, whose organization supports stricter immigration enforcement.

Mehlman acknowledged there is no great solution to this problem but Gee’s ruling takes Congress to task for failing to address it. One option, he suggested, would be legislation that allows longer family detention so parents and children can remain together until their case is resolved.

“They’re called the do-nothing Congress for a reason, but at some point, they have to take their responsibilities seriously and actually do something,” he said.

In her ruling, Gee noted the Obama administration made a similar request for an exemption from Flores requirements in 2015 when it faced a surge in unaccompanied minors at the border. She added that DOJ lawyers were repeating many of the same arguments that failed to convince her back then.

Gee also rejected the Trump administration’s assertion that the 2015 ruling led to a three-to-five-fold increase in illegal family border crossings.

“Any number of other factors could have caused the increase in illegal border crossings, including civil strife, economic degradation, and fear of death in the migrants’ home countries,” she wrote.

However, Mehlman argued a perception that anyone who makes it to the border will be released and allowed to stay indefinitely is fueling the desire to come to the U.S., and people may be making the dangerous journey with children because they see kids as “a get out of jail free card.”

“What happens is, the more likely it is that you’re going to get detained, the less likely it is that you’re going to make the effort to come to the United States,” he said.

McKanders, who has worked with many clients navigating deportation proceedings, stressed that being released is not the same as going free. Some are fitted with ankle monitors and others are required to check in regularly with immigration officials while their case is pending.

“They still have to go through the deportation process,” she said. “They still have to show up to court. Sometimes that process results in individuals being able to stay in the U.S. Sometimes it results in them not being able to stay.”

Mehlman and other supporters of detention say too many undocumented immigrants skip their court appearances and disappear or use the lengthy wait for a hearing to find other ways to stay in the country.

“People come, they get released on bond, a large percentage never show up for their hearings, which are years off,” he said.

Justice Department data on non-detained aliens indicates between 2012 and 2016, around 60 to 75 percent of undocumented immigrants attended court proceedings each year. That means 20,000 to 40,000 non-detained immigrants a year were ordered deported because they were not present in court, but other research indicates compliance is much higher for families.

Gee cited a California Law Review article based on DOJ Executive Office for Immigration Review data that found 86 percent of non-detained family defendants attended all court hearings between 2001 and 2016. Another report by Human Rights First estimated more than 95 percent of released mothers and children with legal representation whose cases were initiated in 2014 were in compliance with all court obligations three years later.

Many of the families impacted by Trump’s zero tolerance policy are seeking asylum, and 96 percent of families who applied for asylum attended all of their court hearings in the time period covered by the California Law Review study.

“What’s interesting is the judge indicated the administration didn’t provide any concrete statistics” to back up its claim that voluntary appearance for deportation proceedings is rare, McKanders said.

In a court filing Tuesday afternoon, the Justice Department indicated less than 40 children under five might be reunited with their parents by Judge Sabraw’s deadline. According to the Washington Post, Sabraw calculated in court 63 children could be reunited by the end of the day or soon after, and she told government attorneys these are “firm deadlines, not aspirational goals.”

“If an order is in place and the administration fails to comply with that, it can be held in contempt of court,” McKanders said.

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