Recall that, shortly after then-Attorney General Jeff Sessions announced a “zero-tolerance policy” for illegal aliens at the border last April, much of the ensuing media firestorm seemed to focus on a rather arcane bit of legalese: The so-called “Flores consent decree,” which dated back to the second term of the Clinton Administration. As the Center for Immigration Studies has explained, the consent decree — reached between the Clinton Administration and Salvadoran national Jenny Flores, and legitimized by the overseeing U.S. District Court for the Central District of California — provided, among other things, that unaccompanied alien children seeking asylum at our border would be released “without unnecessary delay.” Courts subsequently interpreted this as mandating release for unaccompanied alien children seeking asylum at the border after 20 days of detention.
The Flores consent decree was likely itself illegal, insofar as it undermined the clear statutory text of 8 U.S.C. § 1225(b)(B)(iii)(IV): “Any alien subject to the [asylum interview] procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” Note that there is no “without unnecessary delay” language in the statute — rather, the statutory text merely stipulates that aliens who seek asylum at the border “shall be detained” (emphasis added). As the statute sub-heading reads verbatim, this amounts to “mandatory detention.” No room for ambiguity there!
Flores was further butchered during the Obama Administration. As Daily Wire Editor-in-Chief Ben Shapiro noted during the hullabaloo last spring, the Obama Administration implemented an ostensibly humanitarian-motivated border policy of keeping accompanied alien minor children with their parents during the asylum-seeking process’s statutorily prescribed “mandatory detention” period. But in 2015, leftist Judge Dolly Gee, of the same district court that legitimized Flores, erroneously extended Flores‘s 20-day rule fabrication even further to apply to accompanied alien children in addition to unaccompanied alien children. As Ben also noted: “This meant that the government either had to release whole families, or that the government had to separate parents from children.” In summation, the (illegal) Flores consent decree, in addition to (illegal) subsequent extensions of that consent decree, have acted in unison to leave the Trump Administration with the two deeply unappetizing options of (1) mass catch-and-release or (2) politically untenable family separation.
One straightforward solution is for Congress to legislatively vitiate Flores — which it can surely do. But as Daniel Horowitz of Conservative Review has helpfully flagged, the Trump Administration’s Department of Homeland Security actually began to act unilaterally on overruling Flores before oddly aborting the process and leaving it in limbo. The DHS unilateral overruling of Flores takes the form of a proposed rule, submitted last September and still available online, entitled, “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children.” Here is the full document summary (emphasis added):
The U.S. Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) (“the Departments”) propose to amend regulations relating to the apprehension, processing, care, custody, and release of alien juveniles. In 1985, plaintiffs in a class action lawsuit, Flores v. Reno, challenged the policies of the legacy Immigration and Naturalization Service (INS) relating to the detention, processing, and release of alien juveniles. The parties reached a settlement agreement, referred to as the Flores Settlement Agreement (FSA). The FSA, as modified in 2001, provides that it will terminate forty-five days after publication of final regulations implementing the agreement. The rule would adopt in regulations provisions that parallel the relevant and substantive terms of the FSA, consistent with the HSA and TVPRA, with some modifications discussed further below to reflect intervening statutory and operational changes while still providing similar substantive protections and standards. It therefore would terminate the FSA. The rule would satisfy the basic purpose of the FSA in ensuring that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors, while doing so in a manner that is workable in light of subsequent changes. The rule would also implement closely related provisions of the HSA and TVPRA.
Most prominently, the rule would create an alternative to the existing licensed program requirement for family residential centers, so that ICE may use appropriate facilities to detain family units together during their immigration proceedings, consistent with applicable law.
This is perfectly legal. As the DHS proposed rule summary notes, the Flores consent decree provides for its own termination 45 days after publication of final regulations implementing it. Indeed, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas believes that, under its own terms, Flores expired years ago.
What is going on at DHS? How has this incredibly crucial proposed rule been lost in the bureaucracy? DHS needs to resuscitate this proposed rule, and it needs to do so as expeditiously as is bureaucratically possible. The stakes for our sovereignty, security, and sense of national destiny have never been higher.