The Trump administration now says that because of a recent court ruling which barred separating migrant children from their families it has the right to detain migrant children with their parents for months or even years as they wait for their immigration cases to be resolved.
According to Reuters, “The U.S. government said in a court filing on Friday that it has the right to detain children and parents caught crossing the U.S. border illegally for the duration of their immigration proceedings.”
The court filing was made because on Tuesday a federal judge issued an injunction which prohibits the government from taking children away from parents or guardians who are arrested as the illegally enter the United States.
In their Friday filing in Los Angeles Justice Department lawyers argued that Tuesday’s injunction does away with a rule (called the Flores agreement) which says children can be kept incarcerated for no more than 20 days. Their reasoning is that if children can’t be separated from parents then the Flores agreement doesn’t apply, which means that children must be kept in jail with their parents.
So Trump’s lawyers are now saying that the U.S. government has no choice but to imprison the families together for as long as it takes for the resolution of their immigration cases — which can take months or years.
Admittedly, the status of the 20-day rule of the Flores agreement is unclear if courts won’t allow separation of families. But what Trump’s lawyers are doing is using this gray area to impose a new harsher rule which would allow children to be imprisoned with their parents indefinitely.
Trump’s lawyers also say that they want to completely do away with the 31-year old Flores agreement because it prevents the indefinite detention of families.
It may be useful to review the timeline of how this immigration crisis has unfolded.
- Trump and Attorney General Jeff Sessions in March announce the new zero tolerance policy, so all adults are now arrested at the U.S. border.
- The government starts taking children away from parents and guardians who are arrested at the U.S. border.
- There is a huge global condemnation and outcry against Trump for forcefully removing children from families.
- Trump caved to public pressure and stopped the family separation practice through an executive order.
- Trump announced that his new policy would be to keep migrant families together instead of separating children.
- When adults are arrested, and children are with them, the children are now also put in jail “indefinitely.”
- Since the indefinite detention of children is illegal under the Flores agreement, Trump and his lawyers have been working to find a way around it.
What will happen next is unclear. The Justice Department lawyers may lose in court. If that happens they will be forced to find alternative ways to deal with the problem. Trump may end the zero tolerance policy and stop arresting adults crossing the border, although this appears unlikely.
In the past, detained migrants crossing into the U.S. were given monitoring bracelets under the “catch and release” program. Given all the legal complexities and the human rights concerns involved, that may be the best approach, although it would require Trump to back down and admit defeat, which he hates to do.
In fact, just last weekend Donald Trump called for deporting illegal immigrants with ‘no judges or court cases’. Clearly he believes these human beings have no human rights, and he seems to be in favor of the most cruel resolution of the problem possible. These cruel Trump policies have led to many lawsuits already, from the ACLU, and from 17 different states.
Donald Trump thinks his base of political supporters love it when he adopts cruel and racist immigration policies, which means they are likely to continue.
I am a lifelong Democrat with a passion for social justice and progressive issues. I have degrees in writing, economics and law from the University of Iowa.