Summary: Under the court's logic, any separation of a parent and child as result of Flores would place a future class in a position for injunctive relief. The denial of DOJ's Application for Relief in Flores would significantly undermine immigration enforcement along the border, and provide an almost irresistible incentive to adult foreign nationals interested in immigrating United States illegally to bring children (their own or those they falsely claim as their own) on the perilous journey to the United States.
On June 26, 2018, Judge Dana Sabraw of the United States District Court for the Southern District of California issued an order granting plaintiffs' motion for classwide preliminary injunction in Ms. L v. ICE. In that order, he enjoined the government from detaining members of that class without their children, subject to limited exceptions. That decision will almost definitely force the Trump administration to release alien parents who have entered illegally with children in the long run.
That class is defined to include:
All adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the [Department of Homeland Security (DHS)], and (2) have a minor child who is or will be separated from them by DHS and detained in [Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR)] custody, ORR foster care, or DHS custody absent a determination that the parent is unfit or presents a danger to the child.
Notably, however, that class does not include parents subject to President Trump's June 20, 2018, Executive Order (EO) captioned "Affording Congress an Opportunity to Address Family Separation".
On that order, Judge Sabraw preliminarily enjoined DHS from detaining class members in its custody "without and apart from their minor children," except in instances where there has been a determination that the parent is unfit or is a danger to the child, "unless the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child in DHS custody."
As I explained in a June 20, 2018, post, there are two significant provisions in that EO. Section 3(a) therein states that DHS "shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families" throughout both the criminal prosecution of any adults who have entered illegally and any subsequent removal, or expedited removal, proceedings.
This is important because section 462 of the Homeland Security Act of 2002 vested jurisdiction over the care and placement of unaccompanied alien children (UACs) in removal proceedings with ORR.
HHS's responsibility for UACs was clarified in the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). Section 235 of the TVPRA divides UACs into two groups: those from contiguous countries (Mexico and Canada), and nationals of all other countries.
Pursuant to section 235(a)(2) of the TVPRA, a UAC from a contiguous country can be returned if that UAC has not been and will not be a "victim of a severe form of trafficking in persons", does not have a credible fear, and "is able to make an independent decision to withdraw" his or her application for admission.
As the Congressional Research Service (CRS) has found, however:
The TVPRA mandated that unaccompanied alien children from countries other than Mexico or Canada — along with UAC from those countries who are apprehended away from the border — are to be transferred to the care and custody of HHS and placed in formal removal proceedings.
In particular, section 235(b)(3) of the TVPRA directs "any department or agency of the Federal Government that has an unaccompanied alien child in custody" to "transfer the custody of such child to [HHS] not later than 72 hours after determining that such child is an unaccompanied alien child."
When they arrive in the United States with their parents, alien minors are "accompanied children", and section 235 of the TVPRA does not apply to them. As DHS explained in its fact sheet, "Myth vs. Fact: DHS Zero-Tolerance Policy", however:
If an adult is referred for criminal prosecution, the adult will be transferred to U.S. Marshals Service custody and any children will be classified as [a UAC] and transferred to [HHS] custody.
Because section 3(a) in the EO maintains family units in DHS custody while the alien adult parents are prosecuted under section 275(a) of the Immigration and Nationality Act (INA) for illegal entry, the administration will avoid having to separate families by referring the children of alien parents to HHS under the terms of the TVPRA.
As I stated in that post:
This will avoid family separation, at least in the short term.
In the longer term, however, under the provisions of the 1997 Flores settlement agreement, as interpreted in July 2016 by the Ninth Circuit, even those accompanied alien minors must be released within 20 days, as Vox has explained.
To address this, section 3(e) of the EO calls on the Attorney General to "promptly file a request with the U.S. District Court for the Central District of California to modify" the Flores settlement agreement to allow DHS to detain family units throughout the pendency of any criminal proceedings of alien adults for illegal entry, "or any removal or other immigration proceedings."
On June 21, 2018, the Department of Justice (DOJ) filed an Application for Relief from the Flores Settlement Agreement in accordance with that latter provision in the EO. DOJ stated therein:
This Court should provide limited emergency relief to enable the Government to keep alien families together. First, the Court should provide a limited exemption from its interpretation of the Flores Settlement Agreement's release provisions so that U.S. Customs and Immigration Enforcement (ICE) may detain alien minors who have arrived with their parent or legal guardian together in ICE family residential facilities. Second, the Court should exempt ICE family residential facilities from the Agreement's state licensure requirement. These changes are justified by several material changes in circumstances — including the worsening influx of families unlawfully entering the United States at the southwest border.
Extrapolating the current flow of family apprehensions for the first eight months of FY 2018, DOJ projected that 88,670 aliens in family units will be apprehended along the Southwest border this year. Nonetheless, it is unlikely that the court will act quickly on that request, or grant it, given the fact that the district court dismissed similar arguments in 2015.
Again, however, as noted, Judge Sabraw's order does not apply to parents subject to the EO. Yet.
In balancing the equities in Ms. L., the judge states:
The primary harm Defendants assert here is the possibility that an injunction would have a negative impact on their ability to enforce the criminal and immigration laws. However, the injunction here — preventing the separation of parents from their children and ordering the reunification of parents and children that have been separated — would do nothing of the sort. The Government would remain free to enforce its criminal and immigration laws, and to exercise its discretion in matters of release and detention consistent with law. ... It would just have to do so in a way that preserves the class members' constitutional rights to family association and integrity.
In asserting that the government would still be able "to enforce the criminal and immigration laws, and to exercise its discretion ... consistent with law," the judge specifically cites Flores, but does not assess its impact on the government's ability to detain alien parents. It would appear, however, that parents who are in the class could still be detained with their children, but only for 20 days.
As the judge says elsewhere in that order:
The Executive Branch, which is tasked with enforcement of the country's criminal and immigration laws, is acting within its powers to detain individuals lawfully entering the United States and to apprehend individuals illegally entering the country. However, as the Court explained in its Order on Defendants' motion to dismiss, the right to family integrity still applies here. The context of the family separation practice at issue here, namely an international border, does not render the practice constitutional, nor does it shield the practice from judicial review.
Given this and the other findings in that order, it is difficult to envision a scenario where, absent an amendment to Flores, the court would not come back and expand the class to include parents subject to the EO whose children are released from DHS custody in accordance with Flores after 20 days. Specifically, reading the judge's decision as a whole, it is unclear how DHS could release a minor without releasing the parent under Flores in a way that would preserve what the court has identified as the parents' "constitutional rights to family association and integrity", absent some determination "that the parent was unfit or presented a danger to the child."
As the court noted, to be granted injunctive relief:
Plaintiffs must demonstrate "'[they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.'"
The plaintiffs' claim in Ms. L. focuses on substantive due process. As the court explained:
Specifically, Plaintiffs contend the Government's practice of separating class members from their children, and failing to reunite those parents who have been separated, without a determination that the parent is unfit or presents a danger to the child violates the parents' substantive due process rights to family integrity under the Fifth Amendment to the United States Constitution. To prevail on this claim, Plaintiffs must show that the Government practice "shocks the conscience." In the Order on Defendants' motion to dismiss, the Court found Plaintiffs had set forth sufficient facts to support that claim. ... The evidence submitted since that time supports that finding, and demonstrates Plaintiffs are likely to succeed on this claim.
In assessing the "likelihood of success" of the plaintiffs in this claim, the court considered various factors separate from family separation itself, including the way in which that practice was implemented, which the court found included:
[T]he lack of any effective procedures or protocols for notifying the parents about their children's whereabouts or ensuring communication between the parents and children, and the use of the children as tools in the parents' criminal and immigration proceedings.
These were not the main deciding factors in the court's finding of a likelihood of success, however. Instead, Judge Sabraw concluded that in light of these factors, "a finding of likelihood of success is assured." Rather, he concluded that the simple:
[P]ractice of separating practice of separating class members from their minor children, and failing to reunify class members with those children, without any showing the parent is unfit or presents a danger to the child is sufficient to find Plaintiffs have a likelihood of success on their due process claim.
With respect to injury, Judge Sabraw noted that the Ninth Circuit had ruled "repeatedly" that the separation of a parent from a child "constitutes irreparable harm".
Balancing the equities in this case, the court had previously held:
Plaintiffs had stated a legally cognizable claim for violation of their substantive due process rights to family integrity under the Fifth Amendment to the United States Constitution based on their allegations the Government had separated Plaintiffs from their minor children while Plaintiffs were held in immigration detention and without a showing that they were unfit parents or otherwise presented a danger to their children.
The court dismissed the government's assertions that "an injunction would have a negative impact on [its] ability to enforce the criminal and immigration laws," concluding that "the injunction here — preventing the separation of parents from their children and ordering the reunification of parents and children that have been separated — would do nothing of the sort." It was in this context that the court held: "The Government would remain free to enforce its criminal and immigration laws, and to exercise its discretion in matters of release and detention consistent with law." (Emphasis added).
Interestingly, the court did not weigh the effect that Flores would have on that effort. This is significant, because in essence, the government "would remain free to ... exercise its discretion in matters of release and detention," but only for 20 days. Respectfully, that is a significant injury to the government given the direct connection between detention and removal, as well as the deterrence effect of detaining aliens who have entered the United States illegally or other foreign nationals contemplating entering the United States illegally. Simply put, no foreign national would pay a smuggler and undertake the perilous journey to the United States if that foreign national thought that he or she would be detained and removed after entering illegally.
Under the court's logic in Ms. L., any separation of a parent and child as result of Flores would place a future class in a position for injunctive relief. The likely extension of Ms. L. and denial of DOJ's Application for Relief in Flores would significantly undermine immigration enforcement along the border, and provide an almost irresistible incentive to adult foreign nationals interested in immigrating United States illegally to bring children (their own or those they falsely claim as their own) on the perilous journey to the United States.