Trump ratchets up his rhetoric on immigration
Legal case: 1997 ruling intended to protect children
Ask President Trump and his allies why the administration is taking children from their parents at the U.S.-Mexico border, and they’ll point to a 1997 court settlement of a lawsuit by a teenager from El Salvador.
“Because of the Flores consent decree and a Ninth Circuit Court decision, (Immigration and Customs Enforcement) can only keep families detained together for a very short period of time,” Attorney General Jeff Sessions said in a June 7 speech.
A week later, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, tweeted, “I want 2 stop the separation of families at the border by repealing the Flores 1997 court decision requiring separation of families.”
In fact, the parent-child separations are the result of the “zero-tolerance” policy Sessions announced last month, requiring criminal prosecution in all cases of illegal entry. Because the court settlement requires children in immigration custody to be released promptly unless they pose a danger to the public or a flight risk, the administration’s policy mandates separation from their parents.
The suit was filed in 1985 by immigration and civil rights groups in the name of Jenny Flores, a 15-year-old girl who had fled El Salvador. They argued that children should not be held in U.S. custody for months, or sometimes years, while their immigration cases were pending.
In 1997, a federal judge in Los Angeles approved a settlement requiring youngsters to be placed in the “least restrictive setting available” and released “without unnecessary delay” to a parent, adult relative or guardian. If none of those is available, the judge said they must be freed from confinement and placed with a licensed program that provides education and social services.
In 2016, the Ninth U.S. Circuit Court of Appeals in San Francisco ruled that the settlement included minors who were brought to the country by their parents. While lawyers for the youths try to hold immigration officials to the terms of the agreement, they say the Trump administration is trying to turn it upside down.
The family separation practice “puts enormous pressure on a parent to plead guilty ... get out of jail, get deported and start trying to track down their children,” said attorney Peter Schey, president of the Center for Human Rights and Constitutional Law and lead counsel in the case. “They’ve been terrorized by the snatching of their children.”
The settlement “doesn’t address separation, just how minors should be treated,” said Pratheepan Gulasekaram, an immigration law professor at Santa Clara University. Under a law signed by President George W. Bush in 2008, with bipartisan support, he said, “the preference is to reunite the child with a family member as soon as possible.”
But commentators said Congress, as Sessions and Grassley suggested, could probably pass a law that modified or repealed the settlement. Although the original lawsuit claimed the government was violating children’s constitutional right to liberty by holding them in custody to await deportation proceedings, the Supreme Court took up the Flores case in 1993 and ruled 7-2 that detention was not constitutionally forbidden.
The ruling left the details up to the lower courts. Four years later, a federal judge approved settlement terms that include housing in the “least restrictive setting available” and reasonably prompt release.
“I don’t think there’s anything in the Supreme Court case that would prevent Congress from (toughening) the conditions a little bit,” said Bill Hing, a University of San Francisco law professor and director of the school’s Immigration and Deportation Defense Clinic. The courts might not accept jail-type detention for minors, he said, but probably would uphold a law that allowed them to be held for months while their parents’ cases proceeded.
In 2014, after an increase in Central American families arriving at the U.S. border, President Barack Obama’s administration began holding both parents and children indefinitely in newly built family detention centers. U.S. District Judge Dolly Gee of Los Angeles ruled that the practice violated the 1997 settlement, and the Ninth Circuit agreed.
In response to renewed complaints after President Trump took office, Gee ruled in June 2017 that the govern-
ment was failing to release minors promptly under the terms of the settlement and was housing many of them in unlicensed, high-security facilities with poor sanitation. She ordered appointment of an administrator to improve conditions.
Legal efforts have also begun to challenge family separation. On June 6, U.S. District Judge Dana Sabraw of San Diego refused to dismiss an American Civil Liberties Union lawsuit that argues that the Trump policy violates constitutional protections for families. He said the suit alleged “government conduct that arbitrarily tears at the sacred bond between parent and child.”
And Schey said his legal team plans to ask Gee to rule that the 1997 settlement applies to a minor’s rights as a member of a family. Although the terms of the settlement refer only to the children and not to their parents, he said, some protection of family unity is implied in a provision requiring the government to treat the youngsters with “dignity, respect, and a special concern for their particular vulnerability as minors.”