California Judges Reopen ‘Flores’ Border Gate for Coyotes, Cartels, Migrants

EL PASO, TEXAS - FEBRUARY 01: Central American immigrants walk along the border fence after crossing the Rio Grande from Mexico on February 01, 2019 in El Paso, Texas. The migrants later turned themselves in to U.S. Border Patrol agents, seeking political asylum in the United States. (Photo by John …
File Photo John Moore/Getty Images

Three white-collar judges in San Francisco are reopening the judge-created, 1997 border gateway that has allowed at least one million wage-cutting economic migrants to flood into the jobs, housing, and schools needed by blue-collar Americans.

“They’re basically saying, ‘Bring a child with you across the border and it is a get-out-of-jail card,'” said John Miano, a lawyer with the Immigration Reform Law Institute.

The December 30 decision by the judges on the Court of Appeals for the Ninth Circuit rejected a careful 2019 regulation by the Department of Homeland Security (DHS), which is intended to replace the 1997 Flores rules.

The Flores policy was set in 1997 by California Judge Dolly Gee in cooperation with pro-migration officials in President Bill Clinton’s administration and various pro-migration groups. The Flores court settlement enables and invites migrants to overwhelm U.S. border rules by first claiming asylum to prevent quick deportation and then using their children to get released after 20 days into U.S. workplaces.

The judges said President Donald Trump’s DHS regulation would wrongly end the 1997 Flores‘ catch and release policy:

Together, the DHS regulations regarding the release of accompanied minors and the revised definition of “licensed facility” dramatically increase the likelihood that accompanied minors will remain in government detention indefinitely, instead of being released while their immigration proceedings are pending or housed in nonsecure, licensed facilities. Effecting this change was one of the principal features of the [DHS] Final Rule. The government “strongly disagrees” with our holding in Flores [1997] that “the plain [catch and release] language of the Agreement clearly encompasses accompanied minors [with parents].”

“That’s the puzzling thing — how can a [1997 Cinton] arrangement like this be used to bind every future administration?” asked Miano. “That is nuts … it seems contrary to any democratic process.”

The judges did not bar DHS from holding migrant adults for long periods — but they also know that pro-migration Democrats and media outlets will emotionally slam the separation of children from their migrant parents after 20 days. For example, in October, President-elect Joe Biden declared:

Their kids were ripped from their arms and separated and now they cannot find over 500 of sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal, it’s criminal.

Since his election, Biden has begun describing his pro-migration border policy as “family reunification.”

The judges’ decision allows Biden to keep the Flores gateway open during his first term — despite Trump’s regulatory closure — and use the 20-day rule to justify releasing many wage-cutting migrants into the jobs needed by blue-collar Americans. So far, very few white-collar journalists have defended the right of blue-collar Americans to their own national labor market.

Trump’s deputies did not release the DHS regulation until August 2019, 32 months after he took office. The late release — and slow judicial consideration — means that his deputies do not have time to get the Supreme Court to overturn the California judges’ veto.

The judges insisted the Flores gateway has any impact on the flow of migrants through the obstacle course of dangers that lie between migrants’ homes and the jobs they want in the United States. “The crux of the government’s … argument is that an unprecedented increase in the number of minors arriving annually at U.S. borders warrants termination of the [1997] Agreement,” said the judges’ decision, released December 30. The decision continues:

According to the government, “irregular family migration” has increased by 33 times since 2013, and in 2019, more than 500,000 people traveling as families reached the southwest border.


The government has failed to demonstrate that the recent increase in family migration has made complying with the Agreement’s [1997] release mandate for accompanied minors “substantially more onerous,” “unworkable,” or “detrimental to the public interest.”

Amid the court’s claims, many migrants have told U.S. media outlets they brought their children up to the border to exploit Judge Gee’s Flores catch-and-release gateway.

By restarting the catch and release process that allows migrants to get U.S. jobs quickly, the judges’ gateway makes it possible for the cartel-affiliated coyote networks to operate their multi-national, industrial-scale conveyor belt that delivers economic migrants into Americans’ jobs and extracts billions of dollars in smuggling fees.

For example, the New York Times reported in June 2018:

“This is the reason I brought a minor with me,” said Guillermo T., 57, a construction worker who recently arrived in Arizona. Facing unemployment at home in Guatemala, he decided to head north; he had been told that bringing his 16-year-old daughter would assure passage. He asked that only his first named be used to avoid consequences with his immigration case.

“She was my passport,” he said of his daughter.

Migrants die while trying to reach the gateway opened by Dolly Gee. In June 2019, the Washington Post reported:

Standing on the Mexican side of the Rio Grande, America looked within reach. Martínez and Valeria waded in. But before they all made it to the other side, to Brownsville, Tex., the river waters pulled the 25-year-old and his daughter under and swept them away.

Of the 283 migrant deaths that Border Patrol recorded at the Southwest border last year, the largest share — 96 — perished in the Rio Grande Valley. Agents rescued another 4,300 who were “in danger and in some cases life-threatening situations” border-wide.

Gee’s rule is also emptying towns in Central America. In April 2019, the Wall Street Journal reported:

COLOTENANGO, Guatemala—Gloria Velásquez is used to saying goodbye. Four of her six siblings have migrated to the U.S. and she, too, is thinking about heading north with her 9-year-old daughter.

Ms. Velásquez said her four siblings in the U.S. are encouraging her to join them. Her daughter Helen Ixchel likes to teach language and mathematics to fellow children. She wants to learn English and become a teacher.

“I’m a bit scared [about going to the U.S.] after hearing all the news about the suffering of migrants at the border. But it’s my daughter’s greatest dream,” Ms. Velásquez said.

Teenage migrants also use the judges’ Flores gateway to expand America’s child labor workforce. In November 2o20, ProPublica reported:

“Honestly, I think almost everyone in the system knows that most of the [migrant] teens are coming to work and send money back home,” said Maria Woltjen, executive director and founder of the Young Center for Immigrant Children’s Rights, a national organization that advocates for immigrant children in court. “They want to help their parents.”

But whether they stayed in a shelter in Florida or California or Illinois, the teens heard similar warnings from the staff: They had to enroll in school and stay out of trouble. The immigration judges who would decide their cases, they were told, didn’t want to hear that they were working.

“They would ask you: ‘Who are you going to live with? Is he going to support you financially?’” said one 19-year-old who spent nearly six months at a shelter in New York before a family friend in Bensenville agreed to take him in. “And you say yes. ‘Are they going to be responsible for you?’ And you say yes. ‘Are they going to take you to school?’ And you say yes.”

“The odd thing is, usually judges try to avoid catastrophes because they don’t want to be blamed … [but] we’ve already seen the chaos happening,” Miano said.

Three of the four judges were appointed by Democrats.

Gee is the daughter of Chinese immigrants and was nominated to the court by Clinton, as were appeals court judges William A. Fletcher and Marsha S. Berzon. The third appeals court judge, Milan D. Smith, was nominated by President George W. Bush, who was so pro-migration that he pushed for a cheap labor “Any Willing Worker” economy.

The court case was brought by a vast array of establishment, pro-migration business and white-collar legal groups, most of whom stand to gain from the flow of cheap foreign labor and welfare-aided consumers into Americans’ communities:

Carlos R. Holguin (argued) and Peter A. Schey, Center for Human Rights & Constitutional Law, Los Angeles, California; Holly S. Cooper, Co-Director, Immigration Law Clinic, University of California Davis School of Law, Davis, California; Leecia Welch, Neha Desai, Poonam Juneja, and Freya Pitts, National Center for Youth Law, Oakland, California; Kevin Askew, Orrick Herrington & Sutcliffe LLP, Los Angeles, California; for Plaintiff-Appellee.

Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J. Zolle, Constitutional Accountability Center, Washington, D.C., for Amici Curiae Members of Congress.

James H. Hulme, Arent Fox LLP, Washington, D.C.; David L. Dubrow and Melissa Trenk, Arent Fox LLP, New York, New York; Justin A. Goldberg, Arent Fox LLP, Los Angeles, California; for Amici Curiae American Pediatric Association, American Pediatric Society, American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American Academy of Pediatrics California Chapter, American Academy of Pediatrics Pennsylvania Chapter, American Academy of Pediatrics Texas Chapter, American Association for Psychoanalysis in Clinical Social Work, American Medical Association, American Professional Society on the Abuse of Children, American Psychiatric Association, American Psychoanalytic Association, Association of Medical School Pediatric Department Chairs, California Medical Association, California Psychiatric Association, Center for Law and Social Policy, Center for Youth Wellness, Children’s Defense Fund, Doctors for America, Lutheran Immigration and Refugee Service, March of Dimes, National Association of Pediatric Nurse Practitioners, National Association of Social Workers, National Education Association, Society for Pediatric Research, Women’s Refugee Commission, First Focus On Children, Save The Children Action Network Inc., Save The Children US, United States Fund for UNICEF, and Zero To Three.

Amanda Aikman, Jennifer K. Brown, and Natasha Greer Menell, Morrison & Foerster LLP, New York, New York, for Amici Curiae Interfaith Group of 40 Religious and Interreligious Organizations.

Alexis Coll-Very, Redwood City, California; Molly L. Leiwant, New York, New York; Wendy Wylegala, Kids in Need of Defense, New York, New York; for Amici Curiae Kids in Need of Defense, Capital Area Immigrants’ Rights Coalition, Catholic Legal Immigration Network Inc., Florence Immigrant and Refugee Rights Project, Immigrant Children Advocates’ Relief Efforts, International Rescue Committee, Legal Services for Children, National Immigrant Justice Center, Northwest Immigrant Rights Project, Public Counsel, and Young Center for Immigrant Children’s Rights.

Sarah P. Alexander, Constantine Cannon LLP, San Francisco, California, for Amici Curiae Human Rights Watch and Amnesty International USA., Aaron X. Fellmeth, Arizona State University, Sandra Day O’Connor College of Law, Phoenix, Arizona; W. Warren H. Binford, Willamette University College of Law, Salem, Oregon; Blaine I. Green and Erica Turcios Yader, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California; Michael Garcia Bochenek, New York, New York; Stella Burch Elias, University of Iowa College of Law, Iowa City, Iowa; Ian M. Kysel, Cornell Law School, Ithaca, New York; for Amici Curiae Legal Scholars and Nongovernmental Organizations.

Joseph P. Lombardo, Sara T. Ghadiri, and Eric S. Silvestri, Chapman and Cutler LLP, Chicago, Illinois, for Amici Curiae Children’s Advocacy Organizations.

Xavier Becerra, Attorney General; Michael L. Newman, Senior Assistant Attorney General; Sarah E. Belton, Supervising Deputy Attorney General; Virginia Corrigan, Rebekah A. Fretz, Vilma Palma Solana, and Julia Harumi Mass, Deputy Attorneys General; California Department of Justice, Oakland, California; William Tong, Attorney General, Hartford, Connecticut; Kathleen Jennings, Attorney General, Wilmington, Delaware; Kwame Raoul, Attorney General, Chicago, Illinois; Aaron M. Frey, Attorney General, Augusta, Maine; Brian E. Frosh, Attorney General, Baltimore, Maryland; Maura Healey, Attorney General, Boston, Massachusetts; Dana Nessel, Attorney General, Lansing, Michigan; Keith Ellison, Attorney General, St. Paul, Minnesota; Aaron D. Ford, Attorney General, Carson City, Nevada; Gurbir S. Grewal, Attorney General, Trenton, New Jersey, Hector Balderas, Attorney General, Santa Fe, New Mexico; Letitia James, Attorney General, New York, New York; Ellen F. Rosenblum, Attorney General, Salem, Oregon; Josh Shapiro, Attorney General, Harrisburg, Pennsylvania; Peter F. Neronha, Attorney General, Providence, Rhode Island; Thomas J. Donovan Jr., Attorney General, Montpelier, Vermont; Mark R. Herring, Attorney General, Richmond, Virginia; Robert W. Ferguson, Attorney General, Olympia, Washington; Karl A. Racine, Attorney General, Washington, D.C.; for Amici Curiae States of California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

Michael N. Feuer, City Attorney; Kathleen Kenealy, Valerie L. Flores, Michael Dundas, and Danielle L. Goldstein, Attorneys; Office of the City Attorney, Los Angeles, California; Donna R. Ziegler, County Counsel, Oakland, California; Craig Labadie, City Attorney, Albany, California; Esteban A. Aguilar Jr., City Attorney, Albuquerque, New Mexico; Joanna C. Anderson, City Attorney, Alexandria, Virginia; Nina R. Hickson, City Attorney, Atlanta, Georgia; Anne L. Morgan, City Attorney, Austin, Texas; Andre M. Davis, City Solicitor, Baltimore, Maryland; Farimah F. Brown, City Attorney, Berkeley, California; Eugene O’Flaherty, Corporation Counsel, Boston, Massachusetts; Nancy E. Glowa, City Solicitor, Cambridge, Massachusetts; Mark A. Flessner, Corporation Counsel, and Benna Ruth Solomon, Deputy Corporation Counsel, Chicago, Illinois; William R. Hanna, Director of Law, Cleveland Heights, Ohio; Zach Klein, City Attorney, Columbus, Ohio; Sharon L. Anderson, County Counsel, Martinez, California; Jessica M. Scheller, Assistant State’s Attorney, Chicago, Illinois; Heather M. Minner, City Attorney, Cupertino, California; Ronald C. Lewis, City Attorney, Houston, Texas; Charles Parkin, City Attorney, Long Beach California; Margaret L. Carter, O’Melveny & Myers LLP, Los Angeles, California; Michael P. May, City Attorney, Madison, Wisconsin; Leslie J. Girard, County Counsel, Salinas, California; James E. Johnson, Corporation Counsel, New York, New York; Barbara J. Parker, City Attorney, Oakland, California; Marcel S. Pratt, City Solicitor, Philadelphia, Pennsylvania; Cris Meyer, City Attorney, Phoenix, Arizona; Yvonne S. Hilton, City Solicitor, Pittsburgh, Pennsylvania; Tracy P. Reeve, City Attorney, Portland, Oregon; Jeffrey Dana, City Solicitor, Providence, Rhode Island; Susan Alcala Wood, City Attorney, Sacramento, California; Dennis J. Herrera, City Attorney, San Francisco, California; Richard Doyle, City Attorney, San Jose, California; James R. Williams, County Counsel, San Jose, California; Dana McRae, County Counsel, Santa Cruz, California; Peter S. Holmes, City Attorney, Seattle, Washington; Francis X. Wright Jr., City Solicitor, Somerville, Massachusetts; Michael Jenkins, City Attorney, Best Best & Krieger LLP, Manhattan Beach, California; for Amici Curiae 37 Cities and Counties.


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