Judge Dolly Gee Issues a New Flores Order

A movie we have seen before

By Andrew R. Arthur on July 12, 2018

On July 9, 2018, Judge Dolly Gee of the U.S. District Court for the Central District of California issued an order in Flores v. Sessions, the latest twist in the two-decade-long saga that began with the settlement agreement in Flores v. Reno. The predictable result of that order will be a continued (if not increased) flow of aliens generally, and unaccompanied alien children (UACs) and family units in particular, entering the United States illegally.

In a June 29, 2018, post captioned "District Court Sets Up Catch and Release Dilemma", I explained the interplay between Flores, the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), section 462 of the Homeland Security Act of 2002, the recently issued decision from the U.S. District Court for the Southern District of California in Ms. L v. ICE, and the administration's "zero-tolerance" policy as it relates to aliens who have entered the United States illegally, as well as a subsequent executive order (EO) modifying that policy.

Simply put, the administration wants to use all of its authorities to deter aliens, and in particular UACs and alien family units, from entering the United States illegally. This includes prosecuting illegal entrants under section 275 of the Immigration and Nationality Act (INA), and detaining them in accordance with sections 235(b)(1)(B)(iii)(IV) and 235(b)(1)(B)(ii) of the INA. Prior to the issuance of the EO, this required the government to separate parents who were sent to U.S. Marshals custody for prosecution from their minor children, who as a matter of law and policy were not prosecuted. The children became UACs, and were sent to the Department of Health and Human Services (HHS) to be placed in shelters and (in most cases) ultimately released.

It was the separation of parents from their children that led to Judge Sabraw's order in Ms. L, and that the EO attempted to avoid.

Flores was always going to be an issue, however. Under that settlement agreement, as interpreted by the Ninth Circuit in 2016, even alien minors accompanied by their parents must be released to state-licensed facilities within 20 days, as Judge Gee alludes to in her order. As she also states therein, no state licensing is readily available for facilities housing both adults and children. Given these facts, unless there was a modification of Flores, in light of the decision in Ms. L, both parents and children would have to be released within 20 days.

To prevent the separation of parents and children in immigration detention, section 3(e) of the EO called 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 the Department of Homeland Security (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.

Judge Gee rejected that request to modify the agreement, describing DOJ's application as "a cynical attempt, on an ex parte basis, to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate."

The predictable result of that order has been a return to "catch and release", as the New York Times bluntly put it, with the government freeing "hundreds of migrant families wearing ankle bracelet monitors into the United States."

And the predictable result of the end of "catch and release" will be another influx of UACs and family units entering illegally.

As U.S. Customs and Border Protection (CBP) statistics reveal, the number of UACs and family units apprehended by the agency entering illegally plummeted after the inauguration of President Trump, falling from a high in FY 2017 of 22,934 (in November 2016) to a low of 2,115 (in April 2017). I wrote about this so-called "Trump effect" in a May 2017 post. In a September 2017 follow-up, however, I noted that that effect appeared to be waning. That month, 7,152 UACs and family units were apprehended by the Border Patrol, according to CBP. As I stated in that post:

Experts to whom I spoke during my recent border tour expressed a number of different reasons for the increase in aliens seeking illegal entry and claiming credible fear in recent months. The most prevalent is that aliens were frightened off initially by the president's rhetoric about immigration enforcement (particularly on the campaign trail), but that as time has passed and aliens have been able to successfully enter illegally, word has spread that illegal entry is still possible. Similarly, I was told that alien smugglers decided to wait before probing the border for weaknesses under the new administration; now that those weak points have been identified, it was said, they are being exploited.

At that time, I recommended that:

The Trump administration needs to track these trends, and respond to them forcefully, or else we will return to the rates of illegal entry that we saw under the Obama administration. One response would be to increase detention along the border, and ensure that there are sufficient resources to screen each alien who is apprehended seeking entry illegally. Another would be an expansion of criminal prosecution for aliens who have entered illegally, and/or an expansion of expedited removal.

While I doubt that the president was acting based on my advice, that is more or less the roadmap followed by the administration when the number of aliens entering illegally increased even further.

Specifically, in March 2018, 37,384 aliens were apprehended by the Border Patrol (an almost 29 percent increase over the month before) along the Southwest border, including 4,142 UACs and 8,873 family units. In addition, that month a caravan of aliens was making its way through Mexico to the United States border, as my colleague Kausha Luna reported on March 30, 2018.

In response to these developments, on April 6, 2018, Attorney General Jeff Sessions announced a "zero-tolerance policy for criminal illegal entry". The press release making that announcement stated:

Attorney General Jeff Sessions today notified all U.S. Attorney's Offices along the Southwest Border of a new "zero-tolerance policy" for offenses under [section 275(a) of the INA], which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General's zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018 — the largest month-to-month increase since 2011.

"The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest — that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border," said Attorney General Jeff Sessions. "To those who wish to challenge the Trump Administration's commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department's prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws — and as a result, our nation — are respected."

That same day, President Trump signed a memorandum ordering agencies to "expeditiously end 'catch and release' practices." He specifically ordered the Department of Homeland Security (DHS) and other agencies to submit a report to him within 45 days "detailing all measures that their respective departments have pursued or are pursuing to expeditiously end 'catch and release' practices." The president requested "a detailed list of all existing facilities, including military facilities, that could be used, modified, or repurposed to detain aliens for violations of immigration law at or near the borders of the United States."

The administration's efforts to stem the flow of aliens entering the United States illegally were beginning to have an effect by June 2018, when Border Patrol arrested 34,114 aliens along the border (a 15 percent decrease over the month before), including 5,115 UACs (an almost 20 percent decrease) and 9,449 family units (a slight decrease).

The effective termination, through judicial fiat, of the administration's efforts to end catch and release will result in more aliens attempting to enter the United States illegally. This is particularly true given the amount of media attention that the end of that program has garnered.

We have seen this movie before, and we know how it ends. And, no matter how much Judge Gee denies it, the Flores settlement agreement is the script.