Lawyers went to court to warn that judge-imposed detention rules could lead to an explosion of immigrant families streaming across the southwest border illegally — and, perhaps, lead to the separation of parents and children.
But those were not attorneys from President Donald Trump’s administration or an anti-immigration organization, and the hearing did not take place within the past few months. It was the Department of Justice (DOJ) under President Barack Obama in 2015.
At issue was a 1997 agreement signed during Bill Clinton’s presidency, settling a 1985 lawsuit that changed the rules for detention of foreign children who come without adults across the border. The settlement of the suit filed by an illegal immigrant named Jenny Lisette Flores placed a 20-day limit on the detention of unaccompanied minors.
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A federal judge later ruled that the 20-day limit applies to a situation that was almost unheard of until about decade ago — children traveling with their parents or other adults. A surge in that type of illegal immigration in 2014 prompted Immigration and Customs Enforcement (ICE) officials to hold illegal immigrant mothers and children in unlicensed facilities pending the outcome of their immigration court cases.
A civil rights group challenged the policy, alleging that it violated the Flores settlement. U.S. District Judge Dolly Gee, an Obama appointee, agreed.
In August 2015, in an effort to persuade Gee to stop her order from taking effect, DOJ lawyers warned in written arguments that her position would require the Department of Homeland Security (DHS) to release all families who enter the United States illegally — even if they have no legitimate claim for asylum.
“Even the Obama administration could see the terrible consequences of it. And one of them is this caravan.”
“Defendants submit that eliminating DHS’ ability to use the authorities Congress has provided in the INA [Immigration and Nationality Act] to respond to illegal entries could undo the progress that has been achieved in reducing the number of families illegally crossing the southwest border since the summer of 2014,” the government’s brief stated.
“Specifically, the proposed remedies could heighten the risk of another surge in illegal migration across our southwest border by Central American families, including by incentivizing adults to bring children with them on their dangerous journey as a means to avoid detention and gain access to the interior of the United States.”
As Predicted, Family Migration Surged
The Justice Department further argued that the judge’s order would leave the “separation of mothers and children as DHS’ only option” for dealing with any future surge of illegal border crossings by families.
Gee declined to modify her order. The Obama administration avoided the specter of family separation — which came to haunt the Trump administration during its ill-fated zero-tolerance policy — by releasing most families to the interior of the country.
But the Obama DOJ warnings proved prescient. The predicted surge did, in fact, occur. Illegal border crossings from children and adults traveling together — deemed “family units” by the government — had dropped from 68,556 in fiscal year 2014 to 39,838 in fiscal year 2015, following implementation of the new detention policies.
“We’re seeing the consequences of the Flores settlement. The U.S. government is completing the smuggling process … Flores means catch and release for everyone — children and adults.”
Just as the DOJ warned, however, the numbers started climbing rapidly, after Gee’s order led smugglers and people in Central America to realize that they would not be held as long if they brought children with them.
The figure for family units in fiscal year 2016 hit 77,694. Alarmingly, that number dropped only slightly in fiscal year 2017, to 75,622, despite an overall 25 percent decline in illegal border crossings.
In the fiscal year that ended September 30, the number of family units Customs and Border Patrol (CBP) officers caught spiked to 107,212.
“Even the Obama administration could see the terrible consequences of it. And one of them is this caravan,” said Christopher Hajec, director of litigation at the Immigration Reform Law Institute (IRLI).
Hajec was referring to the large group of Central Americans now moving north through Mexico toward the United States. Current estimates peg the caravan at 4,000, but it could be much bigger than that. A second caravan is at the border of Mexico and Guatemala, and there have been violent clashes between caravaners and the authorities.
Although the size and visuals of the caravan attract outsized media attention, an equivalent number of people try to cross into the United States without authorization every three days or so. An increasing number are children and parents.
Roughly 98 percent of illegal border crossers in 2000 were adults traveling alone, but nearly 40 percent of the illegal immigrants CBP officers apprehended in fiscal year 2018 were children traveling by themselves or children and adults traveling together.
Unaccompanied minors and family units also made up about half of the 124,511 illegal immigrants deemed “inadmissible” at border crossing stations.
‘Flores Means Catch and Release for Everyone’
Once released, many of the children and parents coming into the country then illegally skip court dates scheduled to determine whether they are eligible to remain here or must be deported. Not surprisingly then, as an administration official told reporters last week, only 1.4 percent of Central American family units apprehended in fiscal year 2017 have been deported.
Hajec told LifeZette that the Obama administration was justified in seeking to hold migrant families.
“They were absolutely right,” he said. “We’re seeing the consequences of the Flores settlement. The U.S. government is completing the smuggling process … Flores means catch and release for everyone — children and adults.”
Chris Chmielenski, deputy director of the low-immigration advocacy group NumbersUSA, said it should not have been a surprise that more Central Americans wanting to come to the United States would take advantage of the court ruling.
“We certainly saw it coming,” he told LifeZette. It should have been obvious to anyone paying even casual attention, Chmielenski said.
“It makes such complete and total sense that even the Obama administration saw it coming,” he said.
Brandon Judd, president of the U.S. Border Patrol Council, told LifeZette that supervisors in the agency missed a golden opportunity to put different systems into place during the illegal immigration lull that followed Trump’s inauguration last year and his tough talk on illegal immigration.
“And we didn’t do it,” he said. “What we thought was that the rhetoric would work. We didn’t plan for the future.”
Critics of current U.S. policy argue that encouraging young children and families to walk thousands of miles across Mexico is not compassionate. DHS Secretary Kirstjen Nielsen told Fox News last week that roughly 30 percent of women and girls fall victim to sexual assault on the journey. Some human rights groups say sexual assaults are even more common.
Hajec said he saw the dangers first-hand during a recent tour of a border area in Texas that included a chat with a rancher.
“About 40 times a year, they find dead bodies … It’s not a humane thing at all,” he said. “It has to be stopped.”