How does Judge Sabraw’s injunction on family separation impact the Flores consent decree?
<p>US District Judge Dana Sabraw just issued a <a href="https://assets.documentcloud.org/documents/4561262/Ms-L-v-ICE-Order-062618.pdf" rel="nofollow noreferrer">court order</a> prohibiting family separation of people crossing the border illegally and requiring reunification of those families.   Here is what it says in part:</p>
<blockquote>
<p>(1) Defendants, and their officers, agents, servants, employees, attorneys, and all those who are in active concert or participation with them, are preliminarily enjoined from detaining Class Members in DHS custody without and apart from their minor children, absent a determination that the parent is unfit or presents a danger to the child, unless the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child in DHS custody.</p>
<p>(2) If Defendants choose to release Class Members from DHS custody, Defendants, and their officers, agents, servants, employees and attorneys, and all those who are in active concert or participation with them, are preliminary enjoined from continuing to detain the minor children of the Class Members and must release the minor child to the custody of the Class Member, unless there is a determination that the parent is unfit or presents a danger to the child, or the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child.</p>
</blockquote>
<p>So if people are held in DHS custody, they have to be kept together with their kids, and if they’re released from DHS custody, they have to be released together with their kids.</p>
<p>But my question is, how does this impact the <a href="https://cliniclegal.org/sites/default/files/attachments/flores_v._reno_settlement_agreement_1.pdf" rel="nofollow noreferrer"><em>Flores</em> settlement</a>?  For those who don’t know, in 1997 the U.S. Department of Justice agreed to a settlement in a case called <em>Flores vs. Reno</em>, which prohibits children who have crossed the border from being held in federal detention facilities for longer than 20 days.</p>
<p>So under this new court order, what happens after 20 days?  Does DHS have to release both parent and child together after 20 days? Or does this court order allow DHS to detain both parent and child longer than 20 days, thereby overriding the Flores settlement?</p>

<p>The effect of the <em>Ms. L</em> injunction on the <em>Flores</em> Agreement is unclear and will likely result in the Central District weighing in on how the Agreement should be interpreted. Right now, it's a matter of active back-and-forth between the Government and the Central District of California.</p>

<p>On June 29, 2018 the Government submitted a <a href="https://apps.washingtonpost.com/g/documents/national/justice-dept-filing-on-detaining-families-together/3073/" rel="nofollow noreferrer">filing</a> with the Central District to (a) request an amendment to the <em>Flores</em> Agreement in light of the <em>Ms. L</em> injunction, and (b) to let the Central District know how it planned to interpret the Agreement in the absence of an amendment.</p>

<p>In particular, its interpretation of the Agreement is as follows:</p>

<blockquote>
  <p>To comply with the <em>Ms. L</em> injunction barring parents in DHS custody from being separated from their children, the Government will not separate families but detain families together during the pendency of immigration proceedings when they are apprehended at or between ports of entry.</p>
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<p>This seems to indicate that the Government's interpretation of the Agreement post–<em>Ms. L</em> is that it may detain families together during proceedings, even if the detention exceeds 20 days. </p>

<p>As to the way forward, if the Central District disagrees, the matter may go to the Ninth Circuit for resolution.</p>

<p>UPDATE: The Central District <a href="https://www.politico.com/f/?id=00000164-8176-d66b-a166-8bf6cdaa0000" rel="nofollow noreferrer">disagreed</a> with the administration's interpretation of the <em>Flores</em> Agreement, upheld the 20-day limit on child detention, and recommended reinstating prosecutorial discretion. The administration now appears to be in the position of having to either separate or release families at the 20-day mark. </p>

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