Flores agreement: Trump’s executive order to end family separation might run afoul of a 1997 court ruling

The solution to the crisis of family separation at the US-Mexico border, the Trump administration has decided, is to get rid of a 1997 federal court decision that strictly limits the government’s ability to keep children in immigration detention.

The administration has fingered Flores v. Reno, or the “Flores settlement,” as the reason it is “forced” to separate parents from their children to prosecute them. It claims that because it cannot keep parents and children in immigration detention together, it has no choice but to detain parents in immigration detention (after they’ve been criminally prosecuted for illegal entry) and send the children to the Department of Health and Human Services as “unaccompanied alien children.”

The Flores settlement requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible.

Republicans in Congress have proposed legislation that would overrule Flores and allow children to be kept with their parents in Immigration and Customs Enforcement (ICE) custody while they are put through criminal prosecution and deportation proceedings — which many migrant families fight by claiming asylum in the US, a process that can stretch out for months or years.

Trump can’t overrule the Flores settlement with the stroke of a pen. . .

 

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