The “Dem Laws” the Trump Administration Claims have Tied Their Hands: Separating Myth from Fact

By Michelle Martin, PhD, MSW

​The Trump administration has referenced several “Dem laws” they claim have tied their hands in the current crisis involving the separation of Central American children from their political asylum-seeking parents. The narrative, according to Sarah Sanders, White House spokesperson, is that President Trump didn’t create the crisis, but is just the first president to “come to the table” and do something about it.
 
The administration was initially somewhat mysterious about what specific laws they were referencing that “only Congress could fix,” so I, along with many others, took shots in the dark in an attempt to untangle the pertinent immigration legislation at play, exploring whether any of them would warrant separating the children from their parents who are being detained while they await their asylum hearing.
 
Since the initial zero-tolerance policy was implemented in April of this year, the administration has been more forthcoming in their legal stance, and several immigration experts have weighed in on the matter. This blog post is an attempt to make sense of the various laws and policies involved in this crisis.

Myth: Trump’s Hands Legally Tied by Current Immigration Law and are they “Dem Laws” 

False and False.

I’m going to start my analysis of the laws the Trump administration is relying upon in its immigration approach with the Flores Settlement Agreement. This settlement agreement came out of a lawsuit filed by the American Civil Liberties Union (ACLU) and other immigrant rights groups (which I refer to as “et al.” throughout this post) on behalf of unaccompanied minors that the Immigration and Naturalization Service (INS) were detaining indefinitely as a policy approach to curb undocumented immigration.
 
The ACLU has been one of the most active players in advocating for immigrants’ rights, and despite the organizations’ reputation for leaning left, the ACLU has filed lawsuits against both Democratic and Republican administrations. Also, since these types of cases have a tendency to linger on for years, most immigration-related lawsuits have extended through several presidential administrations, as is the case with Flores. 

Flores v. Reno 

[later Meese, Jeh Johnson, Kelly, Sessions] (filed under Reagan and settled under Clinton, continuing on through Bush, Obama and Trump)

In July of 1985, several human rights groups, including the ACLU filed a class action lawsuit against the Reagan administration (i.e., U.S. Attorney General, INS, and two detention facilities) on behalf of four unaccompanied minors in the custody of INS in California and Texas. The first named plaintiff in the case was Jenny Lisette Flores, a 15-year old from El Salvador. Since it was a class action suit, all court decisions and settlement agreements would establish national policy.
 
Jenny Lisette Flores escaped civil war in El Salvador and asked for protection at a US port of entry. She was arrested for an administrative immigration violation and transferred to the BSS detention facility in Pasadena, California. Two other named plaintiffs, including a 12-year old, were at the same detention center, and one was being detained in Laredo, Texas. The detention centers were run by private for-profit companies, just as are current immigrant detention facilities.  
 
The lawsuit challenged a recently implemented INS policy that made the release of unaccompanied migrant children conditional upon a biological parent living in the U.S. surrendering to INS for interrogation and possible deportation. Basically what the INS was doing was holding immigrant children captive if they believed their parent(s) were undocumented. Now some might say this was a brilliant plan, because it essentially “flushed out” undocumented immigrants from the shadows, allowing for their deportation. But all policies have intended and unintended effects and good policy analysis will “flush out” the latter. The unintended effect of this policy was keeping kids in prison with no end date in sight.
 
And that’s exactly what the Flores lawsuit argued: if the parents could not or would not personally appear, the minors were to be detained indefinitely, and that is a violation of a number of laws, as well as violating the U.S. Constitution. Specifically, the lawsuit alleged that this INS policy violated the Immigration and Nationality Act (8 U.S.C. sections 1101), the Administrative Procedure Act (5 U.S.C. sections 552, the Due Process and Equal Protection Clauses of the Fifth Amendment, the First Amendment and federal constitutional privacy rights, and the UN 1967 Protocol Relating to the Status of Refugees (of which the U.S. is a party).
 
The INS’s obligation under federal law was to release unaccompanied minors to a parent, relative, or designated non-relative (on a case-by-case basis), who could ensure their attendance at an administrative immigration hearing. And while children were in detention, the INS was legally obligated to inform the youth of their legal rights, of all upcoming hearings, etc.
 
The lawsuit also took issue with the state of the detention centers and how the minors were being treated. Here are some of the conditions of their detention. Keep in mind that the age range of the children being detained at these facilities was 3-years old to 17 years old:

• They were forced to stay in their cells for 11 to 12 hours per day, with virtually no outdoor time,
• They were denied reading materials and any type of education,
• They were not permitted to have any personal supplies in their cells, including pens/pencils or toys,
• They were denied visitation with family and friends,
• They were denied medical and mental health care,
• They were forced to share sleeping quarters and bathroom facilities with unrelated adults (yes, the detention centers were for both adults and children),
• The facilities did not always have running water or working toilets,
• The food was sparse and substandard, and
• They were subjected to random and unnecessary strip searches and body cavity searches. Yes, minor girls had their vaginas and rectums randomly searched digitally by detention facility officers.

 
Between 1987 and 1997 several rulings were rendered at the District court level in the Flores case, including a demand that the minors be immediately released in accordance with federal law. Portions of the case were appealed to the Supreme Court, which supported most of Plaintiffs’ arguments, but ruled that while was legally obligated to release the immigrant children to a family member (preferably a parent), they were not legally obligated to release a child to a non-relative (i.e., a close family friend), but the agency could do so if deemed appropriate. This ruling related to one of the plaintiff’s case in particular, who had a designated family friend willing to take custody.

Flores Settlement Agreement (Flores Consent Decree)

The Flores case settled in 1997 during the Clinton administration. Here are some of the provisions included in the settlement (for a full list, click HERE):

• Unaccompanied minors could not be detained for an extended period of time, thus the INS had to make every effort to place them with a “responsible adult” (preferably a parent) without unnecessarily delay “at the earliest moment” that a family member was available. Again, while the INS was not obligated to release them to a designated non-relative, they were not barred from doing so.
• The INS had discretion to release “a detained relative adult” along with the child, if there was no other available relative,
• Children who were considered a flight risk or dangerous and thus could not be released were to be kept in what’s called the “least restrictive environment,” based on the child’s age and special needs. This means that they cannot be kept in a locked detention (unless they were a danger), and younger kids absolutely could not ever be placed in a locked (i.e., secure) detention center,
• Detention centers must provide essential benefits, such as good living conditions, nutritional food, water, health care and mental health care, and educational services,
• Discipline could not  have any “adverse psychological consequences,”
• Detention centers must be licensed to care for minors in accordance with child welfare laws,
• Detention centers must having running water, working toilets, and adequate ventilation,
• Minors were to be granted visitation with their attorneys and family members,
• Minors could not be detained with non-relative adult detainees,
• Minors had to have access to medical and mental health care, education and outdoor recreation, and
• Minors were not to be arbitrarily subjected to strip searches or body cavity searches.

Note: The government interpreted the Flores Decree to pertain only to unaccompanied minors, because that was the situation with the four named plaintiffs.

Post Settlement Legal Developments Under the Bush Administration

The ACLU (et al.) filed numerous legal complaints during the Bush administration for  failure to abide by the Flores Settlement agreement. For instance, some immigrant families were being kept in detention even after they passed their credible fear interview (an interim asylum screening process implemented in 1996). Previously, under both Republican and Democratic administrations, immigrant families were released once they passed the screening, pending a future immigration hearing. But as the number of immigrants arriving from Central America rose, the Bush administration started detaining entire families between the time period of their screening and their immigration hearing, which ranged anywhere from one to three years.
 
The following case involves a lawsuit filed by the ACLU (et al.) against the Bush administration that has influenced current case law regarding the detention and treatment of asylum-seekers.
 
Hutto Case 2007 (Filed under Bush, Settled under Obama)

Click HERE for an August 2007 press release announcing the case. 
Click HERE for an August 2009 press release announcing the settlement of the case.
Click HERE for access to all legal pleadings in the Hutto case. 
Click HERE for an empirical analysis of the case.

In 2006, the Department of Homeland Services (DHS) under the Bush administration, converted a prison in Texas into a family detention center called the Don T. Hutto Family Residential Center (“Hutto”).

On March 6, 2007 the ACLU filed 10 separate class action lawsuits against the Bush administration in the United States District Court for the Western District of Texas on behalf of 20 accompanied minors who were being held at the Hutto Center with their parent(s).
 
The suits claimed that the government was in violation of the Flores Settlement Agreement, alleging that the government was detaining immigrant children from around the world at the Hutto center in a way that violated the Flores decree. Since the suits were filed as class actions, any agreements or decisions applied on a national level.

More specifically, the suit alleged that conditions at the Hutto detention center violated every single provision of the Flores Settlement Agreement. Here are some of claims the ACLU made in the suit:

• Hutto was operated as a medium security prison, and children were:
  
  1. required to wear prison uniforms;
     
  2. confined to small cells;
     
  3. denied access to adequate medical, dental, and mental health treatment;
     
  4. denied adequate educational opportunities; and
     
  5. were frequently disciplined by guards who threatened to permanently separate them from their parents,

• The 200 children detained at Hutto were ages 1 to 17,
• All detained families had applied for political asylum,
• Most of the detained parents had passed their credible fear interview (the interim screening process conducted within 48 hours of apprehension),
• The way immigrant children and their families were being treated did not reflect the intention of Congress, since in 2005, 2006, and 2007, Congress had directed DHS to keep immigrant families together and to release these families together, or to use some alternative to detention [emphasis added],
• The Flores decree applied to both accompanied and unaccompanied minors,
• Since the Flores decree prohibited immigrant minors from being unnecessarily detained, the parents were required to be released along with them.

The ACLU requested a temporary restraining order and a preliminary injunction, including the immediate release of the detained children and their families (with supervision). The suits also requested an order prohibiting the government from separating the children from their parents, currently and in the future. 
 
In response, the government claimed that:

• The Flores Settlement Agreement only applied to unaccompanied minors, not those minors who arrived with their parents, thus the Hutto Center was not in violation of the agreement.

 
The District Court ruled very quickly, siding with the ACLU on most arguments, including ruling that:

• The Hutto Center violated the Flores Settlement Agreement, which applied to both unaccompanied and accompanied minors,
  
• That the conditions at Hutto were “deplorable,”
  
• The court denied plaintiffs’ request to immediately release the parents and their children. The court also stated that it would perform regular compliance reviews to ensure that the government was complying with the Flores Settlement Agreement in terms of the quality of detention center.

 
The Hutto cases settled on August 29, 2007 with the Bush administration agreeing that it would abide with the Flores Settlement Agreement in all respects with regard to all immigrant children, accompanied and unaccompanied. The government also agreed to improve the quality of the Hutto Center (and other detention facilities housing immigrant families).
 
After conducting a compliance review on July 2, 2009 (that included a visit and interviews with guards and family members), the court noted that while there had been some improvements at Hutto, it was still operating as a prison, thus was not suited for families.

On August 6, 2009, the government closed the Hutto Center and released most of the immigrant families, placing them instead on a home monitoring program.

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ​

(bipartisan legislation passed under the Bush Administration)
 
President Trump has also referred to U.S. federal trafficking legislation as having “tied his hands” in the current crisis with the Central American asylum-seekers. Specifically, he has consistently referred to purposeful humanitarian components of the legislation as “loopholes.” This is false.
 
The Trafficking in Persons Act includes aspects of the Flores Settlement Agreement in the form of an anti-trafficking pilot program, facilitated jointly by the “Secretary of Health and Human Services, the Secretary of Homeland Security, nongovernmental organizations, and other national and international agencies and experts.”
 
The program involves providing unaccompanied youth from countries other than Mexico and Canada the legal right to apply for asylum to ensure there is sufficient time to evaluate whether the child is or could be a victim of trafficking. In other words, since so many children around the world are victims of human trafficking, our Republican and Democratic legislators want to ensure that we are not immediately returning minors to their traffickers through an expedited removal proceeding. This legislation was supported by Christians, particularly Evangelical Christians, who were concerned about the high number of children being trafficked into the U.S. for illicit purposes.
 
Trump has consistently referred to this program as providing a “legal loophole” because it grants legal rights to unaccompanied migrant children from Central America.
 
To read more about this program, click HERE and then scroll down to SEC. 235. ENHANCING EFFORTS TO COMBAT THE TRAFFICKING OF CHILDREN, #5.

ACLU (et al.) Lawsuits Against the Obama Administration

In 2014 there were a number of undocumented Central American mothers and their children who were crossing the U.S. border and seeking political asylum, due to the ongoing humanitarian crises in Guatemala, Honduras, and El Salvador. Obama not only continued Bush’s policy of keeping families detained after their credible fear interviews, he escalated Bush’s approach.
 
The ACLU accused the Obama administration of adopting a blanket “no release” policy as “an aggressive deterrence strategy,” arguing that the new policy violated the Flores Settlement Agreement’s “general policy favoring release,” which stipulated that immigrants who passed their credible fear screening should only detained if they were determined to be a flight risk or dangerous. The ACLU also argued that Obama’s new policy was being applied solely to Central American immigrants, which was unfair and arbitrary.
 
The ACLU filed numerous lawsuits on behalf of detained minors, during the time period that the Obama administration used the “no release” policy. Below are two cases with decisions that impacted what’s going on today with the treatment of Central American asylum-seekers and their family members.
 
RIL-R v. Jeh Johnson et al. (Attorney General, etc. under Obama)

The ACLU (et al.) sued the Obama administration for using a mandatory detainment policy of Central American asylum-seekers after passing their credible fear screening as a deterrence strategy (used to deter future Central American immigrants from migrating to the United States).
 
The ACLU and the Obama Administration agreed to settle the case in May of 2015, and the District Court rendered the following order:

• The court issued an immediate preliminarily injunction barring the government from using deterrence as a factor in detaining asylum-seekers [emphasis added],
• All parties agreed that if at any time the government began using this strategy again, the ACLU would reinitiate the lawsuit and the District Court would reinitiate the injunction,
• On July 24, 2015 the District court held that the settlement required release of a minor’s accompanying parent, “as long as doing so would not create a flight risk or a safety risk.”
• The final District Court order issued on August 7, 2015 defined the Flores Settlement Agreement’s reference to releasing unaccompanied youth at the “earliest possible moment” after passing the credible fear interview as  “within an average of 20 days from the day that such families arrive in ICE custody” (excluding certain timeframes as specified in the court ruling (e.g., any time prior to the family requesting asylum, postponements requested by their counsel, etc.).

 
Flores vs. Jeh Johnson et al, (Attorney General, etc. under Obama)

On March 9 2015, the ACLU (et al.) filed a “Memorandum in Support” of their Motion to Enforce the Settlement (of the Class Action suit in response to the administration’s blanket “no release” policy).
 
This case was also filed by the ACLU (et al.) because of Obama’s application of a “blanket no-release policy” to all mothers and children from Central America seeking asylum in the United States. The ACLU argued that this policy violated the following stipulations of the Flores Settlement Agreement:

1. By refusing to release the mothers, the government was denying the children the legal right to be released to a parent,
2. The Flores Settlement Agreement requires the government to release detained children to a licensed non-secure facility in less than 72 hours, unless they are a serious flight risk or are dangerous (e.g., delinquent, etc.),
3. The Flores Settlement Agreement requires the government to house minor children in safe and sanitary facilities.

 
The ACLU asked the court to require the government to provide individualized assessments of each asylum case (click HERE for court order).
 
The government responded stating that

• the Flores Settlement Agreement pertained to unaccompanied children only, thus the Settlement’s “preference to release” did not apply to families
• The no-release policy was necessary to manage the humanitarian situation occurring at the border, with the “spike” of mothers and children, and unaccompanied children from Central America crossing the border,
• The facilities were of in quality condition and did not violate the requirements in the Settlement, but the licensing requirement should not apply to family residential centers,
• It was not feasible to release tens of thousands of Central American immigrants into the country every month pending their asylum hearing,
• If the Plaintiff’s case was successful the government would be forced to separate families [emphasis added] which was not something the Obama administration wanted to do, and
• Detaining families prevented traffickers from smuggling children into the country masquerading as families.

 
On July 24, 2015, the District Court rendered this decision:
 

• The Flores Settlement Agreement applied to accompanied and unaccompanied minors,
• The no-release policy was a material breach of the agreement, and minors must be released to a family member without delay, and this should be the apprehended parent (meaning they both should be released),
• The Obama administration breached the agreement by detaining children (with their mothers) in sub-standard, non-licensed, secured (i.e., locked) facilities that were overcrowded, had substandard food and lacked medical care – what defendants called sufficient, the court found to be “egregious.” In other words, because of the poor history of the government keeping immigrants in substandard detention facilities, the court insisted that detained children (and their families) must be kept in licensed facilities.

 
The government asked for reconsideration of the court’s decision (Order to Show Cause), but it was denied on August 21, 2015

When the court learned that the government had not complied with its order by October 23, 2015 it ordered the government to comply that day.

The government appealed to the 9th Circuit Court of Appeals, and the case was heard on July 6, 2016. Here is a summary the decision of the 9th Circuit Court of Appeals, that Trump has referred to as a bad “Dem law” that Congress “needs to “fix”:
Flores v. Lynch [previously Jeh Johnson], No. 15-56434 (9th Cir. 2016)

The Appeals Court affirmed that there was a preference in favor of releasing minors. More specifically, the court stated that unless the Immigration and Customs Enforcement (ICE) determined that the minor was a flight risk or dangerous, ICE “shall release a minor from it custody without necessary delay…” (interpreted in the RIL-R v. Jeh Johnson case as “within an average of 20 days” from the date of apprehension).The Appeals Court affirmed that the Flores Settlement Agreement applies to both to accompanied and unaccompanied minors.
 
The Appeals Court rejected the Plaintiffs’ claim that the Flores Settlement Agreement entitled the plaintiffs to have their parents released with them, but did not bar ICE from releasing them, if the agency deemed it appropriate.
 
So let me try summarize all of this:
 

• The Flores Settlement Agreement requires that unaccompanied children could not be detained in detention facilities indefinitely, and must be released without necessary delay, later defined as an average of 20 days,
• A district court later ruled that the Flores Settlement Agreement applied to all immigrant children—accompanied and unaccompanied,
• If immigrant children are detained, they have to be kept at a licensed facility, whether a child facility or family facility, because of the history of substandard and egregious treatment of immigrants and their children by the U.S. government,
• Family reunification must be a priority and immigrant children must be released to a family member, preferably a parent,
• The family reunification priority does not mean that an apprehended parent has an absolute legal right to be released with the child, in the event that no other relative is available. Yet, ICE can release the apprehended parent if it deems that’s appropriate, typically defined as the parent(s) passed a credible fear screening and is/are not a flight risk or a danger, and
• ICE cannot use a blanket no-release policy as a deterrence strategy.

Obama's Response to Flores

Obama’s hands were legally tied. He either had to release tens of thousands of Central American asylum-seekers pending their asylum hearings, or separate families.
 
Instead, he chose a third option: Family case management that involved supportive services, monitoring and legal compliance.

There are many reasons why he chose this alternative, but a few include: it’s a more compassionate approach that allowed families to remain together, it’s cheaper, and the Justice Department statistics showed that most immigrants do show up for their asylum hearings a few years down the road, and the ones who didn’t said they hadn’t been notified of the hearing date, or didn’t understand the process.
 
The Family Case Management Program (FCMP) was rolled out on January, 21, 2016 “as a new alternative to detention (ATD) initiative that uses qualified case managers to promote participant compliance with their immigration obligations” for non-dangerous, low-flight-risk families.
 
The goal of FCMP was to ensure that political asylum-seekers understood the immigration process and complied with all requirements, including attending all required hearings. Vulnerable families were prioritized in the program, such as families with young children, nursing mothers, families with medical and mental health needs, indigenous families, etc. FCMP services included:

• Orientation and education for participants about their legal rights and responsibilities;
• Individualized family service plans;
• Assistance with transportation logistics;
• Tracking and monitoring of immigration obligations (to include ICE check-ins and attendance at immigration court hearings); and
• Safe repatriation and reintegration planning for participants who are returning to their home countries (FCMP Fact Sheet, p. 1). 

The FCMP began in five major metropolitan areas, with plans to expand to other regions.

Yet, despite its success, Trump canceled the program immediately after taking office.
 
As for the reason why, in an interview with Fox News in June 2018 (reported by NBC News) Trump “…slammed policies or programs that let undocumented immigrants live in the country while awaiting immigration proceedings, using the term "catch and release"   to decry the protections afforded to children and families seeking asylum in the U.S. and inaccurately claiming that the laws force ICE to release dangerous criminals. ‘And we say, 'Please show up to court in a couple of months.' You know what the chances of getting him to court are? Like zero. Ok? It’s crazy.’”
 
The thing is though, the program wasn’t “crazy.” It was a great program that was extremely successful, cost about $36 a day, kept families together, ensured their attendance at ICE check-ins and their  asylum hearings through monitoring and case management, and facilitated their deportations if their asylum requests were denied. And, according to this federal audit, out of the 957 families enrolled in the FCMP, only 23 disappeared.

That’s a 2 percent no-show rate.
 
In another recent speech on June 19, 2018, Trump argued that only 3% (of Central American asylum-seekers) show up for their asylum hearings, stating:

“When we release the people they never come back to the judge anyway.  They’re gone....You never get them out, because they [border control officials] take their name, they bring the name down, they file it, then they let the person go;
They say show back up to court in one year from now.  One year.  But here’s the thing: That in itself is ridiculous.  Like 3 percent come back.”
 
And yet, according to Justice Department statistics, the absentia rates (no shows) for released asylum-seekers (from all countries) without case management and monitoring is already low (between 11% and 25%), but for immigrants in the family case management and home monitoring program, the no-show rate was almost non-existent.

Meaning, they show up for their hearings, and they’re deported if they don’t get asylum.
 
The CAM Program (CAM)

President Obama also started a special priority program for Central American unaccompanied youth who had a documented parent in the United States (i.e., they came in legally). The CAM program focused on family reunification. So a parent is here legally and this program allowed their children to join them.

Trump canceled this program as well immediately after taking office, leaving about 2500 children in legal limbo.

The Trump Administration’s Response to the Central American Immigrant Crises

• Trump is claiming that his hands are legally tied: False
• Trump is claiming that the laws tying his hands are “Dem laws”: False
• Trump is claiming that the “Dem laws” have “legal loopholes”: False
• Trump is claiming that family case management and home monitoring programs (initiated under Bush, and formalized by Obama) are nothing more than “catch and release” programs: False
• Trump is claiming that he had no choice but to separate the Central American families seeking asylum: False
• Trump has directed Attorney General Sessions to request petition the courts to amend its previous order requiring that immigrant children cannot be detained longer than 20 days, so that the immigrant families can be detained indefinitely: Been there, done that
• Trump has directed Attorney General Sessions to petition the courts to drop the requirement that detention facilities housing children (and their families) be licensed in accordance with child welfare laws: Been there, done that

As is often the case, Trump appears to be starting over in most policy arenas without evaluating the effectiveness of policies advanced by previous administrations. President Bush did not embrace a complementary immigration policy framework as Clinton, but he maintained policies and programs that worked. President Obama was a very different leader ideologically than Bush, but he maintained a surprising number of policy approaches and programs of his predecessor, particularly in the area of immigration.
 
But Trump is different. Trump appears to think that recreating the wheel in all areas of policy and governance is the way to go, kind of like the adolescent who is so certain he knows more than his parents.

Seasoned politicians, even ones we may not agree with ideologically, know that history is the best teacher of what works in the policy world, and what doesn’t.