Dozens of Democratic senators and members of the House of Representatives filed a brief Tuesday urging a federal appeals court to block a Trump administration rule that would allow for migrant families to be detained indefinitely.
The Trump administration effort to eliminate time limits on the detention of migrant families was finalized in August. It was rejected a month later by a federal district judge, who said the rule, known as a Final Regulation, violated the very court settlement the government was seeking to scrap.
That 1997 settlement, the Flores Agreement, initially set sweeping standards for the treatment of unaccompanied migrant children. In recent years, court rulings tied to the case effectively prohibited the government from detaining for more than 20 days families apprehended with children.
The brief, which was filed on behalf of 29 senators and 103 House members, asks the Ninth Circuit U.S. Court of Appeals in California to reject the government's effort to overturn the lower court's decision in the case.
The members of Congress said the Final Regulation "effectively (authorizes) the federal government's indefinite detention of children, contravening the Agreement's core mandates that the government 'shall expeditiously process' a minor upon apprehension."
In the release of its Final Regulation, the Department of Homeland Security argued against that interpretation, writing that detention would last as long as it took immigration courts to determine if a migrant should be deported or allowed to stay in the United States.
'"Indefinite detention' is inconsistent with the mission of the Department," the agency wrote in August. "The purpose of immigration detention is to effectuate removal, or for the alien to establish eligibility for relief, as quickly as possible. If the alien establishes that she merits relief from removal, she will be released and if not, she will be removed. The period of detention will last for as long as it takes to complete removal proceedings and no longer."
The members of Congress also argue in their brief that the Final Regulation scraps a requirement that facilities for migrant children must be inspected by state child welfare authorities.
"The Regulations thereby eliminate the assurance that the facilities housing these children satisfy state standards, and they deny the independent oversight of federal immigration detention facilities that is critical to maintaining the health and safety standards for migrant children," the brief states.
The government has repeatedly argued in legal filings associated with the case that its rule is needed to address changing patterns in immigration in the decades since the Flores Agreement was first settled. Lawyers for the Department of Justice claim the Flores Agreement is among the causes leading to an increase over time in the number of children and families attempting to cross the southern border into the U.S.
That stance was roundly rejected by U.S. District Court Judge Dolly Gee on September 27. Gee wrote that the government could not simply cancel the Flores Agreement because of demographic shifts.
"The blessing or the curse — depending on one's vantage point — of a binding contract is its certitude. The Flores Agreement is a binding contract and a consent decree," Gee wrote.