The Justice Department on Thursday sought to modify a federal court order that limits the ability of US officials to detain children.
The move is part of the department’s execution of President Donald Trump’s new executive order designed to keep families together and will likely prove an uphill climb for Justice officials, as the request has already previously been denied under the Obama administration.
After an outcry against the Trump administration’s separation of undocumented immigrant parents and children at the US border, the President reversed course on Wednesday by signing an order that aims to keep far more families together.
The crux of the legal issue that the Justice Department is now grappling with stems from a 1997 settlement agreement in Flores v. Reno and subsequent rulings limiting the detention of children to 20 days. Trump’s executive order calls on Attorney General Jeff Sessions to request to modify the Flores settlement.
Justice Department lawyers want US District Court Judge Dolly Gee in California to modify that rule to give the Trump administration maximum flexibility to detain families — not only until their criminal proceedings conclude, but through the end of any asylum proceedings, which could potentially drag on for many months.
Trump administration officials over the past week have regularly suggested their hands were tied under the Flores settlement and later court decisions.
“Pursuant to these court decisions, minors detained as part of a family unit cannot be detained in unlicensed facilities for longer than a presumptively reasonable period of 20 days, at which point, minors must be released or transferred to a licensed facility,” according to a “Myth vs. Fact” statement provided by Homeland Security.
But that assertion leaves out the fact that “zero tolerance,” the decision to prosecute 100% of illegal border crossings, presented the Trump administration with a policy choice: keep families together, releasing them into the US on electronic monitoring, or split them apart. Trump chose to split the families at the border — thereby complying with Flores by not detaining the children, but also prosecuting adults.
