In asking a federal court to release it from a two-decade old settlement regarding family detention, the Trump administration is using the same arguments that President Barack Obama used to no avail in 2015.
The administration's arguments filed Thursday even cite a 2015 affidavit, when the Obama administration sought to modify the Flores agreement by charging that family detention was necessary to keep families together and enforce the law during a border-crossing surge.
President Donald Trump signed an executive order on Wednesday that seeks to end the practice of separating children from their parents when they enter the U.S. illegally, and directed the Department of Homeland Security to keep families intact, but detained throughout the duration of their court proceedings.
The order directs Attorney General Jeff Sessions to try to modify a 1997 court agreement, known as the Flores settlement, that prohibits the federal government from keeping children, even with their parents, in immigration detention for more than 20 days.
“If I was in Vegas, I would not put the kids’ college fund on the judge granting this motion,” said Leon Fresco, a deputy assistant attorney general who led the Obama administration’s effort to modify the agreement. “The judge made it very clear in 2015 that she was looking for a statistical analysis by a trained statistician that would show that family detention dramatically reduces unauthorized migration.”
U.S. District Judge Dolly Gee in California concluded in 2015 that the Obama administration’s policy to detain families together violated parts of the 1997 agreement regarding the detention of migrant children.
Fresco said the judge wanted proof that was impossible to provide.
The Trump administration acknowledges in the brief that it’s not possible under current law for the U.S. government to carry out Trump's executive order.
“It cannot be done,” writes Chad A Readler, Acting Assistant Attorney General.
The administration calls for a prompt hearing to ask for a “limited exemption” from the agreement so that U.S. Immigration and Customs enforcement can detain undocumented immigrants together with their children in family residential facilities.
It justifies the request, arguing that family detention is necessary because of the “ongoing and worsening influx” of families unlawfully entering the southwest border, which is also what the Obama administration argued.
“In 2015, the government came to this court to explain the importance of family detention to both enforcing the immigration laws while avoiding family separation," Reader writes. "Unfortunately, however, this court’s construction of the Flores Settlement agreement eliminates the practical availability of family detention across the nation, thus creating a powerful incentive for aliens to enter the country with children.”
Gene Hamilton, a top adviser to Attorney General Sessions, told reporters during a conference call on Wednesday that it’s up to Judge Gee.
"This is a stopgap measure and the president is doing everything he can within existing authority," he said. "It's on Judge Gee to render a decision here: Are we going to be able to retain alien families together or are we not?"
Bryan Johnson, who was among a group of lawyers who temporarily advised the legal team representing detained parents, said the answer will be "no." He called Trump’s lawsuit “frivolous” considering the same arguments had already been made.
“There is zero chance the Trump administration's request will be granted,” he said.
Family detention was resurrected after tens of thousands of Salvadoran, Honduran and Guatemalan immigrants raced to the border fleeing violence and poverty.
Like Trump today, Obama argued that family residential centers were an effective and humane alternative by keeping families together as they awaited their immigration hearings or are deported.
But immigrant groups complained that the conditions were unsuitable for children.
Judge Gee agreed.
“The problem is because family detention has been enjoined there will never be a way to obtain the statistics that show family detention is the cause of a reduction of unauthorized migration,” Fresco said.
Franco Ordoñez: 202-383-6155, @francoordonez