Court Approves Settlement in So-Called ‘Family Separation’ Case

Deported aliens can avoid felony prosecution by bringing a kid with them — for the next eight years

By Andrew R. Arthur on December 13, 2023

On December 9, CBS News reported that U.S. district court Judge Dana Sabraw approved the settlement agreement in Ms. L. v. ICE — the so-called “family separation” case. Thanks to the efforts of Biden’s Department of Justice, deported aliens will now be able to freely reenter and not have to worry about being taken into custody — provided they bring a kid with them — for the next eight years. That’s great for the deportees, I guess, but bad for everybody else — especially the kids.

“Zero Tolerance”, “Family Separation”, and Flores. This springs from a short-lived policy known as “zero tolerance”, which then-Attorney General Jeff Sessions announced on April 6, 2018. Under that policy, all adult migrants who crossed without being inspected were to be criminally prosecuted for “improper entry” under section 275(a) of the Immigration and Nationality Act (INA).

Up until then, adults entering illegally with children in “family units” (FMUs) had little fear of being charged criminally for entering illegally thanks to unwritten DHS policies discouraging agents from referring those aliens for criminal prosecution and because of an unwritten DOJ policy not to accept section 275 cases involving such aliens.

The fact is, however, that most aliens who entered illegally — either before that policy or after — haven’t been charged criminally, for reasons having little to do with whether they are criminally liable or not.

That’s because criminal prosecution is just one of three tools Congress gave the executive branch to deter illegal entrants. The other two are detention under section 235(b) of the INA, which Congress has mandated for all inadmissible “applicants for admission” (including illegal entrants) and return back across the border to await removal hearings, under section 235(b)(2)(C) of the INA.

Return back, however, was little-used in the spring of 2018 (it would form the basis for the successful Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, the next year), while under a 2015 district court order in Flores v. Lynch, which interpreted the 1997 Flores settlement agreement (FSA), DHS could only detain children who entered in FMUs for 20 days. To avoid “family separation”, the adults were usually released as well.

Flores created a perverse incentive for adult migrants to bring children along when entering illegally because it all but ensured that they’d be quickly released even if they were caught.

The judge who issued Flores cared little for such real-world consequences, but they were obvious. In FY 2015, when that order was issued, Border Patrol agents apprehended just over 40,000 illegal entrants in FMUs at the Southwest border; by FY 2016, that apprehension total almost doubled, to nearly 77,700.

There was a notable but short-lived “Trump effect” on illegal entries generally right after the last president took office. In FY 2017, monthly FMU Southwest border apprehensions dipped from more than 16,000 in December 2016 to just 1,118 in April 2017.

That decline didn’t last, and by March 2018, agents were catching nearly 8,900 FMU migrants at the U.S.-Mexico line per month. In response, Attorney General Sessions implemented zero tolerance, and DHS started sending adult FMU entrants to federal court for prosecution.

TVPRA. Improper entry under section 275(a) of the INA is a misdemeanor, with a penalty of six months incarceration and/or a fine for a first offense, and a two-year felony (with a possible fine) for a second or subsequent offense. In practice, most first-time offenders receive time-served for the period that they await trial.

Generally, when illegal entrants are referred for prosecution, they pass from ICE custody to the custody of the U.S. Marshals Service. Except in extreme cases (and improper entry isn’t one of them), however, children are not prosecuted under federal law, and consequently, when those adults were sent to the Marshals Service, the minors stayed with ICE.

Except they didn’t remain there, due to yet another well-intentioned but poorly thought-out policy, this one contained in section 235 of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), under which they were deemed “unaccompanied alien children” (UACs) and processed out.

The term “unaccompanied alien child” is defined in statute as:

a child who — (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom — (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.

Section 235 of TVPRA, in turn, requires DHS to send all UACs from non-contiguous countries (that is, every country other than Canada and Mexico) to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS) for placement with sponsors in the United States.

The children whose parents were referred to Marshals Service custody had parents or guardians in the United States, but in an abundance of caution, ICE deemed them to be UACs and sent them to ORR.

Logically, following the brief period that those FMU adults were in Marshals Service custody for prosecution under section 275 of the INA, they would have been quickly reunited with their children, but according to the HHS, DHS, and DOJ inspectors general, that didn’t happen, almost solely due to incompetence.

“Family separation” was a PR disaster for the White House, and on June 20, 2018, President Trump issued Executive Order (EO) 13841, “Affording Congress an Opportunity to Address Family Separation”. It directed DHS to detain all adults in FMUs while they were being referred and held for prosecution.

By that point, approximately 3,014 children in FMUs had been separated from adults, but the issue so dogged Trump that the whereabouts of 545 of them who had not been reunited with their parents or guardians was the first immigration-related question asked during the 2020 presidential debates (toward the end of the last one, that October).

Ms. L. In February 2018, prior to Attorney General Sessions’ announcement, a Congolese national identified only as “Ms. L” filed a complaint in the United States District Court for the Southern District of California, alleging she had presented herself at the San Ysidro, Calif., port of entry seeking asylum, and was thereafter separated from her daughter, “S.S.” That matter was assigned to Judge Sabraw.

Ms. L quickly became a vehicle for immigrants’ advocates to challenge all DHS family separations, and on June 26, 2018, Judge Sabraw issued an order enjoining the government from detaining members of that class without their children, subject to limited exceptions.

As I noted at the time: “That decision will almost definitely force the Trump administration to release alien parents who have entered illegally with children in the long run.” Boy was I right.

“It Is a Moral Failing and a National Shame”. Then-candidate Joe Biden hammered Trump over the issue, asserting on his 2020 immigration campaign website: “It is a moral failing and a national shame when ... President Trump uses family separation as a weapon against desperate mothers, fathers, and children seeking safety and a better life.”

Consequently, as soon Biden took office, he made reuniting “separated” families a priority, even going so far as trying to take funding meant for ICE officers and Border Patrol agents to pay for it.

All the while, Ms. L had taken on a life of its own. By the time Biden’s DOJ agreed to the settlement with the plaintiffs in the case in October, it was (by my count) the 711th document filed in the matter.

It should be noted that DOJ is now controlled by Attorney General Merrick Garland, appointed by the president who decried “family separation” as “a moral failing and a national shame”. That’s likely why the Joint Motion for Preliminary Approval of Class Action Settlement that accompanied that agreement assured the court (four different times) that it is the product of “arms-length” negotiations.

In fact, “The Agreement Is the Product of Extended Arms-Length Negotiations Between Well-Informed and Experienced Counsel” is the header for subsection I(b) therein.

“The Limited Permissible Circumstances for Separation”. I will note that subsection V(C) in that agreement restrictively binds not just the Biden administration, but future ones, from prosecuting aliens in FMUs for illegal entry under the INA. Specifically, clause V(C)(5) states:

The limited permissible circumstances for separation are the following:

the parent or Legal Guardian is referred for prosecution for a felony (other than for related prosecution based on illegal reentry or prior removals). Where no other permissible circumstances for separation are present, CBP will not refer an adult for prosecution solely under [section 275(a) of the INA] if the adult is traveling with a minor, is the minor’s parent or Legal Guardian, and is the only parent or Legal Guardian traveling with the child.

Note that the termination date for that provision, pursuant to subsection I(P) in the agreement, is eight years after the date Judge Sabraw accepted it, which he did on December 11. That means that it will bind not just the current administration, but at least one future one.

Real World Consequences. Those are the legal ramifications of the Ms. L settlement agreement. If anything, the real-world consequences are even more significant.

Under clause V(C)(5) in the settlement agreement, no alien can be charged with felony reentry under section 275(a) of the INA if it will result in separation. EO 13841 directs DHS to keep adults and children in DHS custody during a prosecution for improper entry, but as is also noted, the sentence for reentry under section 275(a) of the INA is two years.

That would mean that the only way to prosecute a re-offender who entered with a kid would be to detain the parent and child in ICE custody for two years, but under Flores, children in FMUs can only be detained for 20 days. Thus, regardless of how flagrantly an alien has violated section 275, that alien would have virtual immunity from prosecution under the Ms. L settlement agreement.

Worse, section 276 of the INA makes it illegal for an alien who has been ordered removed to reenter illegally, and under subsection (b) therein, if the alien was ordered removed for an aggravated felony — like murder, rape, or sexual abuse of a minor — the maximum sentence is 20 years.

The prospect of a 20-year sentence in a federal correctional institution is a real deterrent to illegal reentry, but it’s also one the settlement agreement in Ms. L takes off the table, provided the offender brought a child with him or her on the way back in.

There is an exception (in clause V(C)(1) and subsection V(D)) for aliens who pose a “public safety risk”, but it applies only to those aliens deemed to “pose an ongoing risk to public safety”. I’m not sure what that means where an alien reenters after being removed five years ago following a murder conviction, but given the litigation in this case, expect it all to have a chilling effect on prosecutions.

A separate exception in subsection V(D) applies “where a determination has been made” that the adult migrant “is subject to a mandatory detention statute prohibiting release because of terrorism grounds or a criminal offense such as” sections 236(c) and 241(a)(2), which mandate the detention of aliens removable and ordered removed, respectively, on criminal grounds.

Under guidelines issued by DHS Secretary Alejandro Mayorkas in September 2021, however, there is no guarantee that the current administration will detain those aliens. In fact, Biden’s refusal to hold aliens subject to those provisions was the subject of litigation in Texas v. U.S., a case in which the Supreme Court ultimately ruled that it could not force the administration to detain such aliens.

I can assure you that now that Judge Sabraw has signed that settlement agreement, not only will ordinary border scofflaws take advantage of that loophole (as they have taken advantage of Flores), but it will also open the door to an untold number of serious offenders to reenter illegally, as well.

Trauma to Kids and Costs to Cities. Not only is all of this bad from a law-enforcement perspective, but it’s also bad for the migrant children themselves — and for the cities to which they will be taken in the United States.

In April 2019, a bipartisan panel of experts convened by the Homeland Security Advisory Council to look into family and child entries was so concerned about what they uncovered that they felt compelled to issue a “Final Emergency Interim Report”. As they explained therein:

There is a real crisis at our border. An precedented surge in [FMU] migration from Central America is overwhelming our border agencies and our immigration system. This crisis is endangering children. In too many cases, children are being used as pawns by adult migrants and criminal smuggling organizations solely to gain entry into the United States.

...

Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.

Criminal migrant smuggling organizations are preying upon these desperate populations, encouraging their migration to the border despite the dangers, especially in remote places designed to overwhelm existing [Border Patrol] infrastructure, and extorting migrants along the way, thereby reaping millions of dollars for themselves and the drug cartels who also charge money to cross the border. [Emphasis added.]

Why, exactly, was there a “real crisis at our border” in which children were being “used as pawns” by smugglers and adult migrants? The panel explained that, too:

By far, the major "pull factor" is the current practice of releasing with a [Notice to Appear, the charging document in removal proceedings] most illegal migrants who bring a child with them. The crisis is further exacerbated by a [] federal court order in Flores ... expanding to FMUs a 20-day release requirement contained in [the FSA].

If anything, the settlement agreement in Ms. L will simply magnify that “pull factor” by also removing any possibility that those “adult migrants” would face prosecution. More trauma, more rapes, more robberies, more extortion. And more money for the smugglers and the cartels.

By the way, in April 2019, when the panel issued that report, Border Patrol apprehended fewer than 59,000 aliens in FMUs at the Southwest border. In October, agents there nabbed 84,000-plus FMU entrants, and in August they caught more than 103,000 migrants in FMUs — more than in any single month ever.

Further, as I’ve explained in the past, the municipal costs big cities are facing from the border surge are not so much “migrant crises” as they are “migrant family crises”. Single adult migrants can normally provide for themselves by working, legally or otherwise. That’s usually not a real option for a migrant mother with two young children.

By opening the door wider to even more FMUs, the settlement agreement in Ms. L will simply cause those municipal costs — for housing, food, clothing, education, and medical care — to surge to even higher levels.

Now that the settlement agreement in Ms. L has been signed, there’s not much that this administration or the next one can do to deter aliens deported on criminal grounds from reentering illegally. CBS News reports that Judge Sabraw referred to the plaintiffs’ case as “righteous litigation”. If I were him, I would have tempered my enthusiasm.