President Trump will move Wednesday to cancel the family “loophole” that’s allowed illegal-immigrant parents and children to pour into the U.S., proposing new rules that would replace the 2015 Flores Settlement court order that created a de facto catch-and-release policy for the families.
According to details provided by an administration official, migrant families could be held in detention together while their cases are heard by immigration judges. That would supersede the 20-day limit imposed by the federal judge in Flores.
If the families can be held in detention, they can be deported, security experts say, and once people in Central America see an increase in deportations, they’ll stop coming.
“Today the administration is closing one of the legal loopholes that has allowed human traffickers and smugglers to exploit our vulnerabilities at the southern border,” a senior official told The Washington Times, previewing the announcement.
“President Trump has made it clear that he’s going to secure America’s border at all cost and this rule plays a vital role in the strategy to restore the integrity to our immigration system and our national security,” the official said.
The move is an end-run around Congress, where Democrats have rebuffed Mr. Trump’s requests for a legislative solution.
When acting Homeland Security Secretary Kevin McAleenan went to Capitol Hill last month to plead for action, he was told it would never happen.
“I don’t think that a Democratic majority in the House were ever going to get rid of the Flores Settlement, because I don’t think it’s a solution to keep kids locked up longer even with their parents,” said Rep. Katie Hill, California Democrat.
Rep. Rashida Tlaib, Michigan Democrat, was more blunt: “You want to keep kids longer.”
The administration says it’s not about detaining children, but rather about finding ways to change the incentives that have enticed a record-breaking wave of illegal immigrants to try to jump the border this year.
Reached in 1997, the Flores Settlement created standards for how the government would handle juvenile illegal immigrants who showed up at the border without a parent — known in government-speak as Unaccompanied Alien Children, or UAC.
The agreement called for the children to be moved out of immigration detention as quickly as possible.
In 2015 Judge Dolly M. Gee, whom President Barack Obama appointed to the bench, updated the agreement by ruling that it also applied to children who came with parents, saying they too should be moved out of detention as quickly as possible.
Judge Gee set a 20-day target for release.
And since children are supposed to be kept with parents if possible, that meant the entire family needed to be released within 20 days — less than half the time it takes to complete the average immigration court case.
The Obama administration appealed Judge Gee’s ruling but the 9th U.S. Circuit Court of Appeals upheld most of it.
It took some time, but word eventually got back to Central America that if parents brought children with them to the U.S. border, they would earn quick release, and could disappear into the shadows, Homeland Security officials say.
Smuggling cartels have even begun to advertise to parents that if they bring children, they’ll have an advantage.
“A child is like a passport for migration,” Mr. McAleenan told reporters earlier this year after a trip to Guatemala, which has surpassed Mexico as the top-sending country for illegal border jumpers.
The Obama administration had warned Judge Gee and, later the 9th Circuit, that imposing the 20-day target for release of families would have serious bad consequences, including a new surge in family migration and children being “abducted” by adults looking to falsely pose as families.
Both of those warnings have come to pass.
Homeland Security reported a spike in fake families showing up at the border, including cases where children were rented out to one adult to be brought to the U.S. then “recycled” back to Central America to be rented to another adult later.
Meanwhile, the number of families has grown to numbers unimaginable just a few years ago.
At the time of Judge Gee’s update to Flores in October 2015, the Border Patrol reported apprehending about 6,000 illegal immigrants who traveled as a family unit.
By the time the 9th Circuit affirmed her ruling in July 2016, the number had grown to more than 7,500, and it reached more than 16,000 by December 2016.
The numbers tumbled in the first months of the Trump administration, as smugglers and illegal immigrants expected a get-tough approach. But by 2018 the numbers were rebounding and by 2019 they’d reached astronomical levels.
In May alone, the Border Patrol reported apprehending nearly 85,000 migrants traveling as families. The numbers dropped in June and July, after Mexico and Guatemala stepped up their cooperation with U.S. security efforts.
But July’s 48,127 family migrants is still a “crisis,” border officials said.
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