The Ninth Circuit Court of Appeals ruled Wednesday that the Flores Settlement (a 1997 agreement that set legal standards for the detention and release of immigrant children) applies to both unaccompanied and accompanied minors. The Court also found that neither Immigration and Customs Enforcement’s (ICE) detention and release policies at existing family detention centers nor the ICE Family Residential Detention Standards comply with the settlement. In addition, the decision reaffirmed that the Flores Settlement, as concluded almost 20 years ago, still stands—despite the Obama Administration’s best efforts to circumvent it.
Unfortunately, the Court disagreed with the lower court’s finding that the Settlement provides for the release of detained mothers where necessary to effectuate their children’s right to release. That said, the ruling does not, in any way, require the government to separate families, nor should it. Ripping children, as young as babies, who have already endured an arduous journey, from the arms of their mothers will only traumatize them further. The government has far more effective tools at its disposal to keep families together, give them a meaningful opportunity to establish their eligibility to remain in the United States, and enable them to start rebuilding their lives. In the rare cases where there are demonstrated flight risks, proven alternatives to detention can be used.
According to the Department of Homeland Security’s own statistics, close to 90 percent of detained families ultimately prove that they have a significant possibility of success on an asylum (or other protection) claim. Rather than attempting to fast-track the deportation of this vulnerable population through expedited removal procedures, the government should use its discretion to release children and their mothers apprehended at the border and place them directly into immigration court proceedings, as they did for many years. Doing so will put these families in the best position to fully present their claims for relief.
The Obama Administration restarted the failed practice of family detention and has the power to end it. It should do so immediately.
Photo by Joe Gratz.