(Bloomberg) -- The U.S. Justice Department asked a federal judge in California to immediately alter a 1997 national settlement agreement that bars immigration officials from detaining undocumented children for longer than 20 days.
Modifying that accord is the only way to implement President Donald Trump’s June 20 executive order to end family separations at the border since his directive calls for children to be detained with their families indefinitely while their asylum cases are heard, the U.S. said in a filing Thursday in Los Angeles.
The child-separation policy, spearheaded by Attorney General Jeff Sessions and defended by Trump’s staunches allies, sparked national outrage and bipartisan criticism in Congress. Tweaking the 1997 settlement, in a lawsuit now called Flores v. Sessions, is a necessary step to resolving the crisis, the U.S. said.
“Under current law and legal rulings, including this court’s, it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings,” Acting Assistant Attorney General Chad Readler said in the filing. “It cannot be done.”
The U.S. contends the number of illegal family crossings spiked after a July 2015 court ruling held that detaining families indefinitely violates the Flores accord by keeping children locked up for longer than 20 days. Illegal family crossing rose from as high as 3,000 per month in early 2015 to as many as 9,000 per month after the ruling in July of that year, the U.S. said.
The Justice Department on Thursday also asked for the Flores accord to be tweaked to exempt Immigration and Customs Enforcement family-detention facilities from the agreement’s state-licensing requirements in order to accommodate the "worsening influx" of illegal family crossings. The Pentagon will make space available on military bases for as many as 20,000 migrant children, the Associated Press reported.
The Flores settlement resolved a 1985 lawsuit over the U.S. policy for the detention, treatment and release of immigrant children. Unless it’s modified, the government will be forced to continue separating minors while their parents are prosecuted under a new “zero-tolerance” policy for crossing the U.S. border illegally, the U.S. said.
Lee Gelernt, a lawyer with the American Civil Liberties Union, said in a phone call with reporters that the Justice Department’s request was a “‘transparent ploy” to convince the public that detaining families indefinitely is the only alternative to child separations. Trump should return to the practice used by previous administrations and release families after ensuring they’ll appear in court, he said. The ACLU sued in March to stop the separations and is awaiting a ruling.
"This Administration created a crisis and is now trying to use that crisis to ram through mass detentions and mass jailing of families," said Madhuri Grewal, ACLU’s Policy Counsel.
Peter Spiro, an immigration law professor at Temple University, said the Trump administration may be on the verge of a legal showdown reminiscent of the lawsuits opposing his travel ban against several mostly Muslim nations.
“As with the travel ban, there’s a good chance that the courts will start significantly constraining the Trump Administration in its treatment of families seeking asylum,” Spiro said.
On Thursday, several states said they would sue over the child-separation practice. New York Attorney General Barbara Underwood said in a post on Twitter that “keeping children separated from their families is unconscionable and illegal.”
But changing the Flores deal is the only way to protect the border and keep families together at the same time, according to the Trump administration.
“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 this country with children in violation of our criminal and immigration laws,” the U.S. said in Thursday’s filing.
The case is Flores v. Sessions, 2:85-cv-04544, U.S. District Court, Central District of California (Los Angeles).
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