LOS ANGELES (CN) – The conversation over the nation’s immigration policy crisis, highlighted in recent weeks by the separation of immigrant children from families detained at the border, will shift over to a Los Angeles federal courtroom next month.
U.S District Judge Dolly Gee will hear arguments July 27 on the executive order signed by President Donald Trump this past week ending his administration’s policy of separating immigrant children from migrant families at the U.S.-Mexico border.
The order says it will maintain” family unity” by detaining “alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”
Trump makes clear in his order that families entering the country illegally will be prosecuted to the fullest extent of the law – language in line with his zero tolerance policy that has resulted in the separation of more than 2,300 children from their families in recent weeks.
As part of Trump’s action, the Department of Justice was ordered to file a request – which it did on June 21 – asking the court to modify the Flores settlement agreement. The 1997 consent decree limits the detention of migrant families to no more than 20 days.
The government is seeking a modification allowing detention of immigrant families past the current time limit.
In a June 26 speech to the Criminal Justice Legal Foundation in Los Angeles, Attorney General Jeff Sessions said the Flores settlement has had “disastrous consequences” for immigrant children.
“[The Flores settlement] keeps us from detaining alien children with their parents for more than 20 days while their asylum cases are pending,” Sessions said. “We are asking the court to let ICE detain illegal alien children together with their parent or legal guardian in family residential facilities.”
The DOJ’s filing said the Flores settlement created a “powerful incentive for aliens to enter this country with children” by eliminating the “practical availability of family detention across the nation.”
The agency blamed the Flores agreement for a “3- to 5-fold increase in the number of illegal family border crossings.”
As part of the request, the government also seeks an exemption for ICE family residential facilities from any state licensure requirements.
“The government is not asking to be relieved from the substantive language of the agreement on the conditions of detention in these facilities. The government asks for immediate relief, along with a schedule to allow the parties to more fully address the issues raised by this request,” the filing says.
The Flores agreement, a settlement in the California case Flores v. Reno, set national standards for the detention, release and treatment of all undocumented children in federal custody.
It includes a provision that detained minors be placed “in the least restrictive setting appropriate to the minor’s age and special needs.”
The settlement also requires that juveniles be released from custody without unnecessary delay to a parent, legal guardian, adult relative or an individual designated by the parent.
The Trump administration must operate under standards set by the Flores Settlement unless Congress or the courts modify it. The prospect of congressional action on immigration policy is uncertain at best.
Congressional Republicans have proposed a bill that would override the Flores Settlement and allow indefinite detention of immigrant families together during criminal and immigration court proceedings.
A statement by Refugees International said “it remains to be seen whether this bill will overcome the longstanding stalemate” in Congress on immigration policy reform.
“In any case, it might well be subjected to court challenge,” the statement said. “That leaves the courts.”
The Trump administration may not find the relief it seeks in Los Angeles. A look at Judge Gee’s background and previous rulings may offer a hint at whether she will agree with the administration’s plans to hold families longer.
Gee – appointed to the federal bench by President Obama in 2009 – is the daughter of Chinese immigrants and has been described as an advocate for workers, immigrants and women.
In a ruling that was the first of its kind, Gee ordered the U.S. government in April 2013 to provide legal counsel for mentally disabled immigrants who are detained for potential deportation.
In June 2017, Gee ruled that conditions and staff training at family detention centers at the border violated the Flores settlement. She called on the Trump administration to address detention facility conditions, which she called “deplorable and unsanitary.”
If Gee rejects the DOJ’s motion, the administration could start separating families again or allow adults to go free while their asylum cases proceed.
Rejection would deal Trump’s immigration policy another significant blow this week after a federal judge in California on Tuesday ordered a freeze to family separations at the U.S.-Mexico border.
The order requires federal officials to stop detaining parents apart from their minor children and also calls for the reunification – within 30 days for cases involving children age 5 and older – of all families that have been separated at the border.
The order also mandates that officials provide parents contact with their children by phone within 10 days, if the parent is not already in contact with his or her child.
“Plaintiffs have demonstrated a likelihood of success on the merits, irreparable harm, and that the balance of equities and the public interest weigh in their favor, thus warranting issuance of a preliminary injunction,” US District Court Judge Dana Sabraw wrote Tuesday.