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Justice Department Asks Federal Court to Let It Detain Immigrant Children With Their Parents Indefinitely

Jessica Mason Pieklo

In an emergency motion filed Thursday, lawyers from the Justice Department asked a federal court to modify a decades-old settlement agreement that prevents the federal government from holding immigrant minors longer than 20 days in federal custody.

The U.S. Department of Justice on Thursday asked a federal court to modify an order that generally prevents the federal government from holding children in immigrant detention centers for more than 20 days, arguing the move is necessary to keep children with their parents while the administration processes families for deportation.

Lawyers from the Justice Department filed an emergency motion to make an exemption to a decades-old settlement agreement known as the Flores settlement. Drafted in 1997, the settlement resolved a 1985 class action lawsuit filed on behalf of immigrant children who had been detained by Immigration and Naturalization Service (INS), the federal agency in charge of immigration enforcement at the time.

In addition to limiting the time the federal government can hold immigrant children, the Flores settlement also requires the federal government to place them with a close relative or family friend “without unnecessary delay” and to keep immigrant children who are in custody in the “least restrictive conditions” possible.

The motion filed Thursday seeks to extend the 20-day period for children who arrived with their parent or guardian indefinitely—for as long as it takes to process their immigration claim—and to remove a requirement that families be held in facilities licensed as state-approved child-care centers.

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In its request to the court, the Trump administration blames the Flores settlement and federal courts for what it describes as a “destabilizing migratory crisis,” arguing the agreement has created incentives for migrants to try to enter the United States illegally.

“It is the direct result of the message sent to those seeking illegal entry: We will not detain and deport you,” the government’s brief states.

The request comes just one day after President Donald Trump issued an executive order purporting to put an end to the practice of separating parents from their children after they cross the border. The practice is part of Trump’s “zero-tolerance” approach to border crossings and the DOJ’s promise to prosecute anyone it believes crossed the border illegally.

Trump’s executive order made no change to the administration’s zero-tolerance policy, nor did it address the process for reuniting the upwards of 2,000 children currently separated from their families and in government custody.

Immigrants’ rights groups have vowed to fight the administration’s proposed changes to the Flores settlement, while state attorneys general in Maryland, California, Washington, and elsewhere have promised litigation challenging Trump’s executive order. A class action lawsuit filed by the American Civil Liberties Union challenging the administration’s family separation policy is currently pending in federal district court in California.

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