Trump administration argues it can detain migrant children and parents together without time limits

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Immigrant parents trying to get their children back now at least have the legal system on their side, since a federal judge ordered the Trump administration to reunite all families within 30 days. But huge logistical challenges remain. (June 28)
AP

WASHINGTON — The Trump administration argued Friday that it has the authority to hold migrant children in custody with their parents for as long as it takes to resolve their immigration cases, a departure from the long-standing practice of releasing minors from detention after 20 days. 

In a court filing late Friday, the Justice Department said it would fully comply with a judge’s order to reunite families it has separated as a result of President Donald Trump’s “zero tolerance” policy. But the government’s attorneys argued that they can detain those families together and remain in compliance with a series of U.S. laws and court orders. 

More than 2,000 migrant children have been separated from parents suspected of crossing the border illegally as the Trump administration has jailed the parents. The international outcry over the practice has prompted the administration to find a way to both detain parents and keep them together with their children. 

“We understand the courts to have provided that minors who are apprehended with families may not be separated from their parents where it is determined that continued detention is appropriate for the parent,” said acting Assistant Attorney General Chad Readler in the court filing. 

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But what that also means, he said, is that the government should not have to release either the parents or the children within the time frames of the Flores settlement, a 1997 court ruling that set a 20-day limit on the detention of minors.

Prosecutions of illegal immigration cases often take months to resolve. To comply with the 20-day limit and keep parents and children together would require releasing families from custody during court proceedings.

“The government will not separate families but detain families together during the pendency of immigration proceedings when they are apprehended at or between ports of entry,” the Justice Department told a California judge overseeing the Flores settlement.

That ruling requires children to be released “without unnecessary delay.” But when read in conjunction with a San Diego judge’s ruling this week that children be reunified with their parents within 30 days — 14 days if they’re aged 5 or younger — that delay is necessary, the Justice Department argued.

And if parents want their children to be released from detention, they could always agree to a separation, the government said.

The filing amounts to something of a change in legal strategy for the Trump administration. Trump’s executive order last week sought a modification of the Flores settlement allowing it “to detain alien families together throughout the pendency of criminal proceedings.” 

So eight days ago, the Justice Department argued that under current rulings, “it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings. It cannot be done.”

Now, it argues that it can be done under current law — although a modification “would be appropriate.”

What changed? On Tuesday, U.S. District Judge Dana Sabraw ordered the Trump administration to reunite families in detention. But he also made clear that under his ruling, “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.”

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Contributing: Alan Gomez reported from Miami.

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