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Judge blocks Trump administration from indefinitely detaining migrant kids

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Judge blocks Trump administration from indefinitely detaining migrant kids

  • Asylum seekers just outside the Dennis DeConcini Port of Entry in Nogales, Sonora.
    Paul Ingram/TucsonSentinel.comAsylum seekers just outside the Dennis DeConcini Port of Entry in Nogales, Sonora.

A federal judge denied the Trump administration's attempt to undo a long-standing legal agreement that governs how children are held in custody at the U.S.-Mexico, rejecting the administration's move to indefinitely detain immigrant children. 

In her sharply-written 24-page order, U.S. District Judge Dolly M. Gee rejected the move to undo the landmark 1997 legal deal known as the Flores Settlement, which set national standards for the detention, release and treatment of migrant children in federal custody. 

Gee wrote that the court "cannot permit" Trump and his officials to undo the 22-year-old agreement. 

"The blessing or the curse – depending on one’s vantage point – of a binding contract is its certitude. The Flores Agreement is a binding contract and a consent decree. It is a final, binding judgment that was never appealed," Gee wrote. 

"It is a creature of the parties’ own contractual agreements and is analyzed as a contract for purposes of enforcement," Gee said. "Defendants cannot simply ignore the dictates of the consent decree merely because they no longer agree with its approach as a matter of policy." 

Among the guidelines that were outlined in the consent degree, the result of a lawsuit filed on behalf of a 15-year-old Salvadorian girl, the government is required to release immigrant children to guardians or place them in facilities within 5 to 20 days of detention, and those facilities must be the "least restrictive setting appropriate to the minor’s age and special needs."

In recent months, the Trump administration has challenged the Flores Settlement arguing that it was one of several "legal loopholes," that created a system of "catch and release" and encourages migrant families to come to the U.S. On August 21, Homeland Security Secretary Kevin McAleenan announced the termination of the rule, allowing the indefinite detention of children and immigrant families while their case moves through an increasingly backlogged court system. 

Along with rejecting the Flores agreement, the Trump administration has moved to curb the number of refugees, restricted asylum claims, sought the denial of asylum claims, and instituted a policy known as the Migrant Protection Protocols that returns asylum seeker to Mexico while their case moves forward. 

Earlier this month, the U.S. Supreme Court issued a decision that would allow the Trump administration to deny asylum to immigrants who reach the southwestern border without seeking refuge in another country, allowing the plant to go forward even as advocates continue to challenge the plan in federal court. 

As part of the new rule, U.S. Immigration and Customs Enforcement could set its own standards for care at detention facilities, which would be inspected by a contractor hired by ICE, and the rule would allow ICE to more easily open new detention facilities. 

"This rule allows the federal government to enforce immigration laws as passed by Congress and ensures that all children in U.S. government custody are treated with dignity, respect, and special concern for their particular vulnerability," McAleenan said. 

The move was immediately criticized, with U.S. Rep. Raúl Grijalva writing that the administration's move will "further traumatize asylum seekers, including young children, and shows that his administration has no limits on the lasting harm they are willing to inflict." Meanwhile, the head of governmental affairs for the Council on American-Islamic Relations compared indefinite detention under ICE to the Japanese internment camps. 

"Indefinite detention, and particularly the indefinite detention of children, must never again be allowed in our nation as it was when Japanese Americans were held during World War II. The Trump administration’s white supremacist agenda of caging and punishing migrant and refugee children and parents is immoral and un-American," said  Robert McCaw. 

Trump administration officials followed that with a move on August 31 to terminate the agreement made under Flores, resulting in a new court fight that continued Friday with a hearing in Los Angeles. 

Gee wrote that she was "not unsympathetic to the challenges that Department of Homeland Security and Health and Human Services employees face in executing our country’s immigration policies." 

However, "the evidentiary record before this court overwhelmingly shows that throughout several presidential administrations, the agreement has been necessary, relevant, and critical to the public interest in maintaining standards for the detention and release of minors arriving at the United States’ borders," she wrote. "Defendants willingly negotiated and bound themselves to these standards for all minors in its custody, and no final regulations or changed circumstances yet merit termination of the Flores agreement." 

During the hearing, Gee rejected an argument from Justice Department attorney August Flentje that the new rule was consistent with the Flores agreement. "I’m not sure how you can say that the new regulations are not inconsistent with the Flores agreement," she said. 

"Just because you tell me it’s night doesn’t mean it’s not day. It is certainly within your rights to seek relief from Congress. They can repeal this consent decree." 

Gee later made this argument in her ruling, writing: "The proper procedure for seeking relief from a consent decree," is a court motion, "by which a party must demonstrate that a change in law or facts renders compliance either illegal, impossible, or inequitable. 

"Relief may also come from a change in law through congressional action," she wrote. "Having failed to obtain such relief, Defendants cannot simply impose their will by promulgating regulations that abrogate the consent decree’s most basic tenets." 

Carlos Holguin, an attorney for detained children, told reporters outside the courthouse that the Trump administration can only issue new regulations that comply with the Flores agreement.

"The court basically indicated that this is a straight-ahead contract issue, that the government has made a deal and must live up to its deal," Holguin said. "In practical terms, what this means is that children who arrive in the United States as part of family units will still have a right to be released to their other relatives in the U.S. who might be able to take care of them." 

DHS officials did not respond to a request for comment from 

However, it's likely that Gee's ruling will be challenged and the case will return to the 9th Circuit Court of Appeals.

Aaron Reichlin-Melnick, a policy analyst for the American Immigration Council, reacted to to the judge’s decision, saying that “Deterrence through detention is, at its heart, about inflicting enough pain to stop someone from coming. But when it’s families that are coming, that means deliberately inflicting pain on children,” he wrote on Twitter. “Let’s use today’s positive Flores news to renew efforts to rethink deterrence.”

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