The Trump administration lost another round in federal court this week in its effort to deprive immigrant children of their rights under the court-supervised Flores agreement. Federal district court Judge Dolly Gee denied an attempt by the administration’s lawyers to modify the agreement, which requires that children be held in licensed child care facilities and that they be released within 20 days.
Right at the beginning of her decision, Gee criticized the Trump administration’s lawyers for violating the court’s rules by making a motion to modify the Flores agreement on grounds that the court had already heard and rejected. The sloppy lawyering on the Trump side was evident throughout these proceedings.
Modifications of a court-supervised agreement like Flores typically only take place either when both parties agree to the change or when the court finds that there has been a changed circumstance that the parties could not have reasonably anticipated at the time the agreement was made.
Gee found that there had been no such change in this case. Even if she had found changed circumstances, it is unlikely that the order the president’s lawyers sought would have been granted because, rather than present a carefully crafted limited modification of Flores, the judge wrote that the lawyers for the Trump administration “seek to light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat.”
This is not something any Federal judge should allow. The judge’s language shows how far the administration has departed from the agreement:
“The Flores Agreement allows Defendants [the government] up to five days to place minors in licensed programs if they are apprehended in districts that do not have those programs, or ‘as expeditiously as possible’ if there is an “influx of minors into the United States[.]’ In 2015, the Court found that the Flores Agreement could accommodate Defendants’ request for a 20-day deadline during an influx. Yet, Defendants now seek to hold minors in indefinite detention in unlicensed facilities, which would constitute a fundamental and material breach of the parties’ Agreement.”
The administration tried to convince the judge that the agreement itself was responsible for what it claimed was a surge of new arrivals at the border. The judge responded that the “Defendants fail to show that the Flores Agreement and the July 24, 2015 Order are responsible for the so-called ‘surge’ in illegal family border crossings.”
The judge was extremely critical of the motives of the government in bringing this action. She wrote that “It is apparent that Defendants’ Application is a cynical attempt…to shift responsibility to the Judiciary…[for] ill-considered Executive action.” She also reminded the government of its responsibilities towards children:
“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.”