Federal Judge Rejects Trump’s Request To Change Catch-And-Release ‘Loophole’

Will Racke | Immigration and Foreign Policy Reporter

A federal judge in California Monday rejected the Justice Department’s request to allow the government to detain illegal immigrant families together while they go through immigration proceedings.

Judge Dolly Gee denied a motion to suspend a part of the 1997 Flores settlement decree that bars immigration authorities from holding families in detention for more than 20 days. Gee, who set the 20-day standard in a 2015 update to Flores, said she saw no legitimate reason to modify her ruling, Reuters reported.

The Trump administration has criticized Flores as a legal “loophole” that forces immigration officials to release illegal immigrants if they are traveling in family units. By treating families differently than single adult migrants, the Flores provides an incentive for parents to bring their children on a perilous journey across the southwest border, the government argues.

Trump had tried to close the loophole by implementing a “zero tolerance” policy against unlawful border crossing, under which prosecutors charged as many people as possible with illegal entry, regardless of whether they had children in tow. The policy caused more than 2,000 migrant children to be separated from their parents while the adults were prosecuted in federal criminal court. (RELATED: Pentagon Sending Military Lawyers To Border To Prosecute Illegal Immigration Cases)

Following public outcry, Trump rescinded the policy and ordered border authorities to detain illegal immigrant families together in civil immigration detention centers. But Gee’s refusal to modify her Flores ruling effectively precludes the Trump administration from carrying out the executive order and returns immigration detention policy to the pre-“zero tolerance” status quo.

“We disagree with the court’s ruling declining to amend the Flores Agreement to recognize the current crisis of families making the dangerous and unlawful journey across our southern border, but the court does appear to acknowledge that parents who cross the border will not be released and must choose between remaining in family custody with their children pending immigration proceedings or requesting separation from their children so the child may be placed with a sponsor,” Justice Department spokesman Devin O’Malley said in a statement late Monday.

The White House has asked Congress to legislatively overturn Flores and allow for longer family detention, but an immigration reform bill that would have done so failed in the House in late June.

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