Trump moves to detain immigrant children with their parents

The furor over separating alien minors from detained parents has put President Trump in a difficult position.  

Alien families who are apprehended at or near the border after making an illegal entry are placed in expedited removal proceedings. Unless they request asylum and establish a credible fear of persecution, they will be summarily deported.

{mosads}The expedited removal process requires mandatory detention until the aliens are deported or see an immigration judge for an asylum hearing.

If Trump keeps alien minors with their parents at a detention facility for more that 20 days, he may be in violation of the Flores Settlement Agreement. But if he removes them without their parents, he will be severely criticized for separating children from their parents.

The Settlement Agreement allows the placement of alien minors at non-secure, state-licensed child-care facilities, but their parents can’t go with them. According to the Congressional Research Service, there aren’t any licensed state facilities for alien minors to stay at with their parents.

That just leaves the option of releasing the entire family — but that would violate the mandatory detention provision — and Trump doesn’t have the authority to disregard it.

Immigration advocates claim that this problem can be avoided by putting the families in regular removal proceedings before immigration judges instead of in expedited removal proceedings, but the immigration court cannot handle the cases it already has. 

The 330-judge immigration court had a backlog of 746,049 cases as of the end of July, which was 38 percent larger than when Trump took office. The average wait for a hearing is just shy of two years.

Moreover, it would defeat the purpose for establishing expedited removal proceedings: to stop aliens from entering the U.S.without a legitimate claim for asylum. In expedited removal proceedings, they only get an asylum hearing if they can establish a credible fear of persecution. This approach hasn’t been completely successful either though.

Most of the aliens who are admitted after establishing a credible fear never file an asylum application. In fiscal 2014, only 19 percent of them filed one. In fiscal 2015, only 26 percent filed. In fiscal 2016, only 40 percent filed. And in fiscal 2017, only 39 percent filed. 

Settlement agreement

The Settlement Agreement comes from a 1985 class action suit in the U.S. District Court for the Central District of California, Flores v. Meese.

Among other things, the suit objected to the conditions at the facilities where juveniles were being detained: “While in INS detention, plaintiffs and those similarly situated are required to share sleeping quarters with unrelated adults. Juveniles so detained are provided no educational instruction, no educational or other reading materials, and no supervised recreational activity.”

The Settlement Agreement only applied to unaccompanied minors until it was extended in 2016, to include alien minors who are being detained with their parents. 

The current requirements provide DHS with the following custody options:

• (1) Parole the entire family into the United States
• (2) Detain the parents and either release the minors to another parent or legal guardian, or transfer them to the Department of Health and Human Services to be treated as Unaccompanied Alien Children
• (3) Detain the entire family at an appropriate Family Residential Center during their immigration proceedings

Alien minors who are not released from government custody must be housed in non-secure, state-licensed facilities.

The Settlement Agreement originally was set to expire within five years, but in 2001, the parties stipulated that it just would remain in effect until “45 days following defendants’ publication of final regulations” governing the treatment of detained minors.

Proposed regulation

On Sept. 7, the Trump administration filed a proposed rule to establish final regulations that would replace the Settlement Agreement.

According to DHS, the proposed regulations would implement the relevant, substantive terms of the Settlement Agreement with minor revisions to accommodate changed circumstances, and to implement closely-related provisions in the Homeland Security Act of 2002, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.

The main benefit would be the creation of a federal licensing scheme for additional Family Residential Centers that would provide care for alien minors and their parents.

According to the American Immigration Council, “shifting the licensing and oversight of facilities that hold children to DHS is profoundly problematic, given the lack of expertise the department has in child welfare and its poor track record on oversight of adult facilities.” 

Maybe, but if a challenge to the regulation goes to court, the main issue is likely to be whether administration officials can bypass an explicit statutory provision requiring mandatory detention in expedited removal proceedings with a settlement agreement.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.