Protesters Sergio Cordova (left) and Michael Benavides use baby clothes to spell out the word "reunite" during a rally against the Trump administration's immigration policies at Linear Park near the federal courthouse in Brownsville, Texas, on June 28. | Tamir Kalifa/Getty Images Feds: Decades-old court decree allows family immigration detention

Just days after President Donald Trump announced that his administration would ask a federal court to permit detention of immigrant families by modifying a longstanding court settlement, Justice Department lawyers told the Los Angeles-based judge handling the case Friday that no change to the decree may be needed.

Trump administration lawyers argued that a separate injunction a federal judge in San Diego issued Tuesday barring family separations effectively wipes out provisions in the decades-old Flores agreement that have been determined to bar detention of most children in immigration custody for more than 20 days.


“The rulings work together to permit detention of parents with their minor children with whom they are apprehended,” Justice Department attorneys wrote in a submission to U.S. District Court Judge Dolly Gee, who oversees the 31-year-old Flores agreement on the treatment of immigrant children.

The filing appears to leave open one key question: What becomes of the Flores agreement's requirement that children be held in state-licensed day care facilities?

Federal authorities say a family detention center in Pennsylvania has such approvals, but two other centers in Texas do not. In addition, federal officials are crafting plans to hold some families in makeshift centers yet to be constructed on military bases, which don't have such approval and may not be able to get it anytime soon.

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The government's filing Friday treats that issue in a footnote, but it could become a major sticking point.

“The issue regarding how the Flores Agreement licensing provisions apply to family detention centers is the subject of ongoing litigation,” Justice Department attorneys wrote. “We have also asked this Court to modify the Agreement to permit the transfer of families together to family residential centers without requiring a state license.”

Thorny questions also remain about parents’ rights under the two court orders. The government notes that the injunction issued Tuesday by U.S. District Judge Dana Sabraw suggests that keeping families together is the default position, with parents permitted to agree to release of a child to another family member.

However, lawyers advocating for children under the Flores agreement have typically he issue differently, saying that a child should be placed in the community unless parents affirmatively agree to them remaining in detention.

“The Trump Administration has been engaged — since January of 2017–in restoring order to the lawlessness at the southwest border and protecting our nation’s citizens, but we are beholden to a broken immigration system that Congress has refused to fix and that courts have exacerbated,” a Justice Department spokesman said in a statement. “While Congress has recessed for the 4th of July holiday, we continue to urge them to act decisively in order to solve the crisis at our border and end ‘catch and release.’”

The Justice Department's position gives supremacy to the injunction Sabraw issued Tuesday, while the decades-old Flores agreement oriented toward release of children has been interpreted by not only Gee but the 9th Circuit Court of Appeals to require release of accompanied and unaccompanied minors within 20 days.

Immigration advocates in both cases have suggested parents should have a right to opt to keep their families together, but no court has specifically endorsed a right to opt-out of Flores' release requirements.

Despite the government's position that the current state of play in the two legal cases allows the detention of immigrant families, Justice Department lawyers said in their pleading Friday that the government continues "to believe that an amendment to the agreement is appropriate to address this issue."

Late Friday night, immigrant rights advocates involved in the Flores case responded to the government's submission last week asking Gee to end the consent decree's provisions requiring release of immigrant children. No change to the pact is needed, the lawyers pressing the class-action case said.

"Modifying the agreement to strip accompanied class members of the right to reasonably prompt release would not improve Defendants’ ability to keep families together. It would permit Defendants to force families to stay together in unlicensed facilities by eliminating class members’ right – subject to opt out by a parent – to be released or placed under the terms of the Agreement," the immigrant children's attorneys wrote.

The immigrant rights' lawyers also dispute the Trump administration's claims that it is facing a massive surge of family migration. They say a recent inspection by one of their lawyers found the 2,400-bed Dilley, Texas, family detention facility to have more than 800 beds unoccupied. The attorneys also reject the notion that children's right to release encourages migration to the U.S.

"The Settlement has been in effect since 1997, yet Defendants offer no evidence establishing that its enforcement now encourages others to enter the United States without authorization. In any event, deterring others is simply not a lawful basis to refuse anyone release, much less vulnerable children," the lawyers wrote.

One lawyer close to the case said Friday night that immigrant parents could waive their rights under Flores in order to keep their children with them, but could not be compelled to waive their right to have their child placed in a licensed center. Such a stance could flummox Trump's new family detention policy by giving authorities two stark choices the administration has said it wants to avoid: release the adult or break up the family.

An attorney who argued for the injunction in the San Diego case, which is known as Ms. L., said that order does not require Trump to put families in extended detention.

“The government's suggestion that the Flores settlement and the Ms. L case are in conflict is false,” said Lee Gelernt of the American Civil Liberties Union. “Neither the Ms. L case nor the Flores settlement remotely requires long term family detention, because the government can and constitutionally must release parents who do not pose a flight risk or danger. Moreover, as the government recognizes, notwithstanding the Ms. L case, parents can always choose to release their children if they do not want them to remain in a family detention center. Ultimately the Ms. L case leaves it up to parents to decide what is in the best interests of the child. Additionally, it would be flatly unconstitutional if the government's purpose in detaining families is punitive or is intended to serves as a deterrent.”