Why a Judge Blocking Changes to the Flores Settlement Agreement is Worse Than You Think

A federal judge’s move to block the Trump administration from detaining illegal alien family units for longer than a 20-day period received a considerable amount of praise from the mainstream media, but their reporting omitted describing the consequences of this erratic decision.

It is clear from the exponential increase in asylum claims in recent years (which remain completely unrelated to circumstances in home countries) that “asylum loopholes” are the main factor contributing to the nation’s border crisis. Right up there with the gaping asylum loopholes, the Flores Settlement Agreement is almost unanimously discussed as the key loophole incentivizing migrants to come to the U.S. border at unprecedented rates.

The original 1997 Flores Settlement Agreement, implementing a Supreme Court decision, pertained to the detention of unaccompanied minors. However, in 2015, Federal Judge Dolly Gee ruled that a 20-limit on detention of minors must also apply to children who are accompanied by a parent or another guardian – a ruling that was agreed to by the Obama administration.

Seeing that immigration experts from all different backgrounds frequently highlight this loophole, it is unconscionable that a single unelected federal judge would still strike down efforts to reform it.

The agreement mandating that children traveling with adults must be released from detention after 20 days has fueled the explosion in asylum seekers in recent years. Under Judge Gee’s 2015 Flores ruling, arriving with a child is a virtual “get out of jail free” card. Since immigration hearings typically take around 50 days, nearly all detained family units are released into the interior of the country before their hearing is complete and the vast majority disappear.

Now that Judge Gee, an Obama appointee, has stymied the Trump administration’s efforts to reform this policy, three significant negative outcomes are expected to result from her decision:

1) The nation’s immigration court backlog will worsen.

• This backlog recently exceeded one million cases. Because of the growing backlog caused by a surge of illegal alien family units attempting to exploit the Flores Settlement Agreement, immigration courts are not adjudicating asylum cases quickly. Some cases are currently taking years to complete.

2) Resources at the border will become even more depleted.

• Detention facilities at the southern border have already reached capacity due to a surge of migrants exploiting the Flores Settlement Agreement. Overcrowded facilities may strain the ability to provide required health, education, and legal services.   

3) Human smuggling will surge at the border.

• Since having a child in tow essentially guarantees entry into the country in less than 20 days, human smugglers and adult illegal aliens are endangering children in an effort to exploit glaring loopholes in our laws. Even worse, criminal smuggling cartels have created a new business model that allows them to profit from repeatedly endangering children. Just this year immigration authorities indicted a Guatemalan woman in South Carolina after she admitted to recycling children 13 times for payments of $1,500 a child.

Rather than acknowledging the harmful unintended consequences of her 2015 ruling, Judge Gee once again sacrificed national security, the well-being of children, and common sense to her personal political agenda.

Congress has had opportunities to address this situation but has failed to do so. Lawmakers can still overrule Judge Gee’s decision so that family units can remain in detention together while their hearing is completed as well as provide more funds for improved detention facilities. Only time will tell.