Posted on August 28, 2019

Good Riddance to the Flores Decree

John Daniel Davidson, Wall Street Journal, August 26, 2019

The Trump administration announced last week it will terminate the Flores settlement agreement, a 1997 court decree that has prevented U.S. officials from detaining migrant families and unaccompanied minors for more than 20 days. {snip}

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The administration has now published a new regulation that will set standards for the detention and treatment of unaccompanied minors and families, including a policy to keep families together in federal custody. It’s the latest attempt to work around a woefully inadequate underlying body of immigration and asylum law, which Congress has refused to reform. These archaic laws are what’s driving the migrant crisis.

The history of the Flores case helps explain why. In 1997 the Clinton administration agreed to settle a suit filed nine years earlier by immigration advocates on behalf of a group of Central American teenagers in federal custody. The agreement laid out nationwide detention standards for unaccompanied alien children, as well as the timing and terms of their release. But it said nothing about families.

Fast forward to 2015, when the U.S. faced unprecedented numbers of families and unaccompanied minors crossing the border and claiming asylum. President Obama’s initial response was to detain family units for the duration of their cases, and his administration established family detention centers specifically for this purpose—all of which are still in use.

That year, a federal district court judge ruled that family detention violated the terms of the Flores settlement, and reinterpreted the agreement to apply to families as well as unaccompanied minors. The judge also ruled that family units and unaccompanied minors could not be detained for more than 20 days—an arbitrary threshold that was never part of the original Flores agreement.

The Ninth U.S. Circuit Court of Appeals upheld this ruling in 2016, presenting the Obama administration with a choice: Either separate parents from children at the border to detain the parents and criminally prosecute them, or release them. Mr. Obama opted for catch and release. The Trump administration briefly tried family separation, only to abandon it last year amid a public outcry.

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{snip} As a result, children became “passports” into the U.S., and the number of families crossing the border surged, after dipping sharply in 2017. Smuggling organizations now advertise discounted family rates and are collecting billions of dollars. So are the drug cartels that control vast swaths of northern Mexico and charge a toll for every migrant who crosses the Rio Grande from cartel-controlled territory.

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What about detained unaccompanied minors? They still must be released to a sponsor in the U.S., usually a parent or other relative. Once released, a date is set for their appearance before an immigration judge. But the vast majority of sponsors are themselves in the country illegally, so of course the minors rarely show up for their hearing. They simply disappear into the immigration underground. The number of minors ordered deported after failing to show up at their hearings went from 519 in 2010 to more than 6,700 last year.

All of this is a direct result of outdated federal laws and congressional inaction. {snip}