A federal judge says the government can now leave it up to immigrant parents: Keep your children locked up with you in an immigration detention center, or send them miles or states away to be cared for in a government-contracted shelter.
For months, the Trump administration’s “zero tolerance” policy split parents and children who crossed the border illegally, inspiring a national backlash and, in June, a federal court order that migrant families must be kept together and that families who were already separated must be reunited.
But keeping all those families together presented a problem for the federal government: It can’t, under a longstanding legal constraint called the Flores settlement, detain children in immigration detention centers for longer than 20 days — far less than the months or years it can take to process an asylum case.
More than three weeks after the government’s deadline for reuniting thousands of families split at the border, it has begun to butt up against that 20-day restriction. And for now, the government is not permitted to deport reunited families — also the result of a court order this week.
The Thursday court order gives the government some measure of a solution to that dilemma: U.S. District Judge Dana Sabraw has agreed that families can waive that 20-day right and other Flores guarantees, keeping their children with them in immigration detention centers. Or they themselves can choose to re-separate. That means the government won’t be forced to violate the Flores settlement as they wait for permission to deport some migrant families.
The Department of Justice did not return a request for comment Friday. But last month, Justice Department lawyer Scott Stewart said the government’s goal is ensuring that migrant parents who would otherwise have been detained can’t “bootstrap a right to release” just because they’re reunited with their children.
“In neither circumstance do this Court’s orders create a right to release for a parent who is detained in accordance with existing law,” says an Aug. 16 order from Sabraw.
The order had sign-off from the American Civil Liberties Union, which successfully took the federal government to court this year to order the reunifications.
Attorneys on both sides of that case agreed that the court-mandated family reunifications do not diminish the government’s ability to detain migrants; but the Thursday order should also not be seen as preventing the government from releasing them, the ACLU pointed out in court filings. A different federal judge ruled in July that the federal government can’t indefinitely detain asylum seekers without good reason, such as their posing a danger to the community.
Some reunited families have already been released from immigration detention — some were first tagged with ankle monitors — but Stewart indicated that the government is exploring legal options for keeping more families detained. The federal government has also been working to steadily increase its capacity for detaining families by building more facilities that can house parents and kids together.
Sabraw’s Thursday order puts into migrant parents’ hands the conundrum the Trump administration has struggled with for months: where, and how, to house families who illegally cross the border together as they proceed through the winding, drawn-out process of seeking asylum in the United States. Though they now have more choice, migrant families seeking refuge here do not all seem to have the option most had under previous presidents: to remain free in the United States, on bond or parole, while awaiting an asylum hearing in court.
The Trump administration has made it clear it prefers to hold families who illegally cross the border together in immigration detention centers. Many families are still likely to be separated, but now it will be because the parents made it so.
A government status update Thursday evening showed that more than 500 migrant children remain separated from their parents, 20 of them under the age of five.