The Trump administration is now fighting in court for the ability to lock up migrant children indefinitely — along with their parents.
The Department of Justice filed an emergency motion in federal court on Thursday to modify a 1997 settlement that prevents the government from detaining migrant children longer than 20 days. Ending the limitations on the length of time kids can be detained, the administration argues, is the only tenable alternative to splitting up families that are apprehended crossing the border illegally.
Although the Trump administration argues the changes it outlined on Thursday are the only way to end family separations, the filing suggests parents and kids could be split up again down the road.
If a judge or Congress doesn’t grant the government the authority to detain kids for more than 20 days, the government would be faced with either releasing whole families ― a practice Trump has derided as “catch and release” ― or keeping adults locked up without their children.
“Under current law and legal rulings, including this Court’s, it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings,” the filing reads. “It cannot be done.”
In addition to ending limits on the length of time kids can be locked up, the Trump administration is asking the court to make family detention centers exempt from state licensure requirements for facilities that hold children. Family immigrant detention centers have also faced difficulty in getting and maintaining licenses to operate as child facilities, which could present a problem as Trump seeks to expand the practice.
The Trump administration claims in the court filing that exempting facilities holding kids and parents from state licenses is justified by the “worsening influx of families unlawfully entering the United States at the southwest border.”
The court filing follows an executive order from President Donald Trump on Wednesday that the president claimed would end the routine separation of migrant families apprehended at the border that resulted from a “zero tolerance” policy to prosecute illegal entry. Trump said the “zero tolerance” policy would remain, but parents would now stay with kids while they undergo criminal and immigration proceedings ― paving the way for a massive expansion in family detention that his administration has long demanded.
But the government’s ability to keep kids detained, even with their parents, is limited by a 1997 court settlement called the Flores agreement. Trump’s executive order directed the attorney general to file in court for a change to that agreement, which it swiftly carried out.
The current limits on family detention, according to the court filing, create “a powerful incentive for aliens to enter this country with children in violation of our criminal and immigration laws.”
It goes on to state that an increase in illegal border crossings by families since 2015 is due to a court order that detaining kids with their parents for more than about 20 days violated the 1997 Flores agreement.
“This surge is not a mere coincidence, it is the direct result of the message sent to those seeking illegal entry: we will not detain and deport you,” the filing reads.
Trump is not the first president to seek more family immigrant detention. Former President Barack Obama received considerable pushback from immigrant rights advocates and some Democrats when he expanded family detention and had to limit the length of time families were held under the 2015 court order.
Along with its push to remove limits on family immigrant detention in court, the Trump administration is pushing for the same changes through legislation in Congress.
“Irrespective of the Court’s decision in Flores, it is incumbent for Congress to finally act to keep families together, end catch and release, and create the foundation for an immigration system that serves the national interest,” a DOJ spokesman said in a statement.