Judge Dolly Gee rejected Attorney General Jeff Sessions’ request for a revision of the 1997 Flores court settlement and has directed officials to restart catch and release policies for any migrant who crosses the border with a child.
The directive effectively gives pro-migration Democrats more power to block border reforms, even though they have made clear they oppose any reforms of the court-ordered loophole which has encouraged and allowed hundreds of thousands of Central American migrants to seek jobs in the United States.
“Defendants seek to light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat,” declared Judge Dolly Gee, who was nominated by President Barack Obama. “It is apparent that Defendants’ Application is a cynical attempt … to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate.”
The 1997 settlement — including its 2015 update during Obama’s tenure — creates a loophole because it forces officials to release migrants who bring children with them after just 20 days of detention. That deadline leaves insufficient time to process migrants’ demands for asylum, so forcing officials to release them and their children into the United States. Many of the migrants never even pursue their legal claim to asylum and just disappear into the population of illegal immigrants.
In June, Trump ended his policy of detaining migrant parents and housing their children in separate facilities, amid a media uproar. The new decision pressures him to either release the parents and children together, or return to the detention-and-housing policy battle, or forge a new path.
The “best interests [of migrants’ children] should be paramount,” the judge declared, as she released her decision while the media covered President Donald Trump’s choice for the next Supreme Court judge.
The judge argued that her Flores loophole is not responsible for the Central American migration, which is having a huge negative impact on the stability of Central American countries.
“In the absence of a showing of changed circumstances that the parties could not have foreseen at the time of their  Agreement, it is unnecessary to replow the same familiar territory,” the judge wrote, even though many migrants say they bring their children to get past the border guards. Gee dismissed the cause-and-effect connection, saying:
At bottom, Defendants’ arguments rest in part on the premise that the July 24, 2015 Order resulted in a “3 to 5-fold increase in the number of illegal family border crossings” because it led arriving families to believe that Defendants would rather release them than separate the children from their families … Any number of other factors could have caused the increase in illegal border crossings, including civil strife, economic degradation, and fear of death in the migrants’ home countries.
For example, the New York Times reported June 22:
“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.
The judge directed AG Sessions to restart the policy of catch and release:
Absolutely nothing prevents Defendants from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion.
It is apparent that Defendants’ Application is a cynical attempt, on an ex parte basis, to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate. The parties voluntarily agreed to the terms of the Flores Agreement more than two decades ago. The Court did not force the parties into the agreement nor did it draft the contractual language. Its role is merely to interpret and enforce the clear and unambiguous language to which the parties agreed, applying well established principles of law. Regardless, what is certain is that the children who are the beneficiaries of the Flores Agreement’s protections and who are now in Defendants’ custody are blameless. They are subject to the decisions made by adults over whom they have no control. In implementing the Agreement, their best interests should be paramount.
Sessions can appeal the decision to very liberal Ninth Circuit of Appeals, and then to the Supreme Court.
Critics say he can also post a formal public regulation, complete with public comments, to bypass the Flores decision.