President Donald Trump speaks at CPAC 2018.
Photo Credit: Gage Skidmore

President Donald Trump signed an executive order that provides a temporary detention policy for families caught entering the country illegally and gives families a priority with immigration proceedings.

The order reads in part:

Sec. 3.  Temporary Detention Policy for Families Entering this Country Illegally.  (a)  The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.

(b)  The Secretary shall not, however, detain an alien family together when there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.

(c)  The Secretary of Defense shall take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law.  The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.

(d)  Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes.  The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.

(e)  The Attorney General shall promptly file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.

Sec. 4Prioritization of Immigration Proceedings Involving Alien Families.  The Attorney General shall, to the extent practicable, prioritize the adjudication of cases involving detained families.

As President Trump’s executive order mentions, the Flores Consent Decree would need to be addressed, Caffeinated Thoughts described what it entails on Tuesday:

The Flores Consent Degree in 1997 in Flores v. Reno places several obligations on immigration officials. Human Rights First summarizes them in three broad categories:

  1. The government is required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
  2. If a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.
  3. The government must implement standards relating to the care and treatment of children in immigration detention.

The Ninth Circuit Court of Appeals in Flores v. Lynch in 2016 ruled, that the settlement, “unambiguously applies both to accompanied and unaccompanied minors, but does not create affirmative release rights for parents.”

Flores does not require families to be separated but requires accompanied minors to be released from custody after 20 days. In Flores, the Ninth Circuit Court of Appeals noted, that the accompanying parent is to be released with the child, “unless the parent is subject to mandatory detention or poses a safety risk or a significant flight risk.”

After the executive order, Iowa Governor Kim Reynolds called on Congress to act.

What was happening at the southern border was horrific. Children were being separated from their families to be used as pawns. That is not who we are as a nation,” she said.

“While the president’s action today is progress, the work is not done. Congress cannot use this executive order as an excuse not to act,” Reynolds added. “Our nation’s immigration system is still broken, and our border is not secure. It is time for Washington to get the job done.”

U.S. Senator Chuck Grassley (R-Iowa), Chairman of the Senate Judiciary Committee, and U.S. Senator Joni Ernst (R-Iowa) co-sponsored the Keep Families Together and Enforce the Law Act. U.S. Senator Thom Tillis (R-NC) is the chief sponsor and author, but Grassley did write a section of the bill.

The legislation would do the following:

  • Requires the Department of Homeland Security (DHS) to keep immigrant families together at residential centers pending the outcome of their immigration proceedings.
  • Sets mandatory standards of care for family residential centers.
  • Authorizes over 200 new immigration judges and requires the DHS Secretary and Attorney General to expedite the court proceedings of children and families.
  • Keeps children safe by requiring a child be removed from the care of an individual in the following cases:
    • The individual presents a clear danger to the health and safety of the child;
    • DHS cannot verify that the individual is actually the parent of the child;
    • The parent of the child has a violent history of committing aggravated felonies;
    • The child has been a victim of sexual or domestic abuse; or
    • The child has been a victim of trafficking.

“This is a simple, straight-forward solution to a problem we all agree needs fixing,” Grassley said. “It reflects the American people’s humanity and respects the rule of law by permanently ensuring that families can stay together in family residential centers while their cases are pending. This is exactly our purview as members of the legislative branch: make laws to address pressing issues. There is an urgent need to end the crisis, so I look forward to the bill’s rapid consideration.”

In February, Grassley introduced the Secure and Succeed Act, which would have would have prevented family separations.

The Keep Families Together and Enforce the Law Act is also co-sponsored by U.S. Senators Marco Rubio (R-Florida), Lindsey Graham (R-South Carolina), Ron Johnson (R-Wisconsin), Tom Cotton (R-Arkansas), Ted Cruz (R-Texas), Dean Heller (R-Nevada), James Lankford (R-Oklahoma), Deb Fischer (R-Nebraska), Jerry Moran (R-Kansas), Ben Sasse (R-Nebraska), Pat Roberts (R-Kansas), Steve Daines (R-Montana), Johnny Isakson (R-Georgia), Jeff Flake (R-Arizona), Orrin Hatch (R-Utah), Jim Inhofe (R-Oklahoma), John Thune (R-South Dakota), Bob Corker (R-Tennessee), Mike Crapo (R-Idaho), John Hoeven (R-North Dakota), John Boozman (R-Arkansas), Rob Portman (R-Ohio) and Mitch McConnell (R-Kentucky).

U.S. Senator Ted Cruz (R-TX) on Monday introduced the Protect Kids and Parents Act, which does four things:

  • Double the number of federal immigration judges, from roughly 375 to 750.
  • Authorize new temporary shelters, with accommodations to keep families together.
  • Mandate that illegal immigrant families must be kept together, absent aggravated criminal conduct or threat of harm to the children.
  • Provide for expedited processing and review of asylum cases, so that—within 14 days—those who meet the legal standards will be granted asylum and those who do not will be immediately returned to their home countries.

The original co-sponsors to that legislation are cosponsors: U.S. Senator John Barrasso (R-Wyoming), Roy Blunt (R-Missouri), Mike Crapo (R-Idaho), Steve Daines (R-Montana), Joni Ernst (R-Iowa), Orrin Hatch (R-Utah), John Hoeven (R-North Dakota), Mike Lee (R-Utah), James Inhofe (R-Oklahoma), James Risch (R-Idaho), Pat Roberts (R-Kansas), Mike Rounds (R-South Dakota), Marco Rubio (R-Florida), Ben Sasse (R-Nebraska.), Tim Scott (R-South Dakota), Pat Toomey (R-Pennsylvania), Roger Wicker (R-Mississippi), and Todd Young (R-Indiana).

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