Emails, Rick T. Su, professor, University of Buffalo School of Law, June 12-15, 2018
On Tue, Jun 12, 2018 at 3:35 PM Selby, Gardner (CMG-Austin) wrote:
Hello again. I write afresh because we’re now fact-checking a recent claim (brought to our attention by a reader) by Sen. Ted Cruz of Texas touching on the separation of children from parents arrested at the border: “There’s actually a court order that prevents keeping the kids with the parents when you put the parents in jail.”
Is this an accurate claim? Why or why not?
Anything incorrect or left out?
Any other recommended resources/experts?
As ever, we count on attributable on-the-record information for our stories. I am hoping to complete this review this week and would be grateful to hear back by phone or email.
MORE:
Cruz’s re-election campaign responded to our inquiry about this claim by saying: “In 1997, in a case called Flores v. Reno, the federal government entered into an agreement as part of litigation known as the Flores settlement or the Flores agreement. A copy of the original settlement terms can be found here. In short, the agreement put several restrictions on how the government can deal with unaccompanied minors (which includes children whose parents are being detained):
Cruz otherwise said—starting about the 10:20 mark of the interview fetchable by clicking here—that it’s the Trump administration’s decision to arrest adults for entering illegally that has led to separations that didn’t happen previously because families were detained and then released.
I am pasting my transcript of this part of the Cruz interview below.
CRUZ: “Nobody who cares about humanity, nobody who cares about compassion, would want to see a system that encourages illegal immigration.
“Now recently the press has been focusing a great deal on the issue you specifically asked about, about separating children from parents. Well, I’ll tell you there’s a reason why under the Obama administration that often didn’t happen. Because when they apprehended people here illegally, they just let them go. And when you let them go, you didn’t separate children from parents.
“You know, you think about it, when someone gets arrested for a crime, let’s say an American citizen gets arrested for a crime, for murder, for burglary, for whatever. If you’re arrested from a crime, you’re separated from your children, you’re put in prison. If you’re the only caregiver for that child, then you’ve got to find alternative care for those children, That is often another family member or, if need be, it’s a foster family or some other means to care for kids. That is the inevitable consequence of somebody being arrested for a crime.
“This is an issue that, I think, the media has largely constructed because what’s shifted is that the Trump administration is endeavoring if people cross illegally to arrest them, not to let them go--and so if they have kids, you know, there is actually a court order that prevents keeping the kids with the parents when you put the parents in jail. So when you see reporters, when you see Democrats saying, don’t separate kids from their parents, what they’re really saying is don’t arrest illegal aliens.”
Further thoughts?
Thank you for taking a look,
g.
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W. Gardner Selby
Reporter / News
Austin American-Statesman
PolitiFact Texas
11:03 p.m.
June 12, 2018
As much as I think the bolded statement may be misleading, it is largely correct on its own terms. In fact, compared to Trump's allegation that it is the Democrats that caused the separation of the kids, this statement is far more accurate. Why? Because, as the quote points out, the separation is conditioned on the decision by the Trump administration to put the "parents in jail." That decision is not inevitable. The Trump administration's hands were not forced. There are multiple ways that separation could be avoided and the nation's interest in immigration adjudication and removal could still be maintained. But the "zero tolerance" policy of detaining and criminally prosecuting all immigrants, even those who arrived with children, is what has led to this
So why then is Cruz's statement misleading? Because it is premised on his assumption that there are only two options when it comes to children and their parents. But there are many, even after we factor in the Flores agreement and the Trafficking Victims Protection Reauthorization Act of 2008, both of which requires that children be placed in the "least restrictive setting." The many options reveal not only the complex history of the Flores settlement and Congressional statute, but also how we got here with the Trump administration's decisions.
For completeness, let's lay out the various options (including, for now, those that may violate Flores and the TVPRA):
1. Parent sent to prison, child sent to prison (parent and child together).
2. Parent sent to a family detention facility, child sent to a family detention facility (parent and child together).
3. Parent released, child released (parent and child together).
4. Parent sent to prison, child released (parent and child separated).
5. Parent sent to prison, child sent to child-appropriate detention facility managed by ORR in HHS (parent and child separated).
6. Parent sent to prison, child sent to a separate prison (parent and child separated).
From the list here, we see that the first three options keep the parent and child together. The last three would separate them.
The first question is whether any of these options are precluded by the Flores agreement or the TVPRA. One argument is that as long as the parent and child are together, neither Flores nor the TVPRA apply. There is some basis for this argument. After all both refer to unaccompanied minors, and if the child is with the parent, then they are not considered unaccompanied. Indeed, this is what the Obama administration had argued. In 2015, however, a district court held that Flores applied to all children in immigration custody, whether accompanied or unaccompanied. This decisions was affirmed by the 9th circuit in 2016. What this definitely precludes then is option number 1 and 6, both of which would have the child be sent to a traditional prison. What the litigation has been about since 2014, however, is whether the family detention facilities that Obama opted to use (option number 2) met the substantive requirements of the Flores agreements and constituted the "least restrictive setting" requirement of that agreement and the TVPRA.
The Obama administration initially tried to create family detention facilities that would be in compliance with Flores. But when that proved difficult and expensive, and when they determined that flight risk was low, it changed policy and started to opt for option 3 (releasing both parent and children together). Obama cannot take all the credit (or blame) for opting for release; there were many indications that it was reluctant to do so and were aware of the possible risks. But nonetheless, the choice to release was a choice not to double down on family detention facilities.
When the Trump administration came up, many options were still on the table. But Trump was against any kind of release from the stat ("catch and release"). They also seemed strongly inclined to send parents to prison where possible, rather than a less restrictive setting, in order to create deterrence. Those two policy choices then forced the options down to 1, 4, 5, and 6. Of these options, only option 1 would keep the parent and child together. But option 1 would also be foreclosed by the 2015 interpretation of the Flores agreement. Option 6 would also clearly violate the Flores agreement because the child would, like option 1, also be in a prison or prison-like facility. That leaves option 4 and 5, both of which would separate parents from children. Option 4 would be less restrictive than option 5, but would require a family member or an appropriate sponsor available to receive the child. Also, the Trump administration seems inclined not to release children either. That leaves option 5, which the Trump administration seems to be focusing on. Yet even under that, there is the question of whether the Trump administration will be in compliance with Flores in terms of the facilities that they actually create and operate. This may be why even while the Trump administration is claiming that the separation is caused by Flores, they are also challenging Flores entirely and seeking to be freed from its limitations.
So yes, Cruz is right that once you have make the decision to send the parents to jail, separation may be necessary because Flores generally forbids the government from detaining children in jail. Although given the horrors of separation, and the rumors of children not being reunited with their parents even after removal, it may be that keeping parents and children together in jail would be the "least restrictive setting" if the other option is separation. It is important to note that, from my reading, neither the Flores settlement nor the litigants and judge involved foresaw that the settlement would lead to separation of parents of children.
But the Trump administration is wrong to suggest that there are no other options available. And it is misleading of Cruz to suggest that there are only two options--release or separation--when there are in fact more. Option 2 would keep families together, as long as a serious effort is made to ensure the family detention facilities are actually set up and operated in a correct matter. Option 3 is also available, and would certainly be the least restrictive setting. These options are not costless, to be sure. Indeed, the Trump administration may have good reason to reject them for other grounds. But it would be wrong to suggest that they are not available, and that separation was the only option.
Let's be frank though. The Trump administration is not pursuing separation because its hands are tied, or even as a last resort in order to carry out some other policy. It is pursuing separation purposefully and directly as a policy because, as administration officials have acknowledged, it is a deterrent in itself. Under that logic, even if the Flores agreement did not exist, there would still be deterrence-related interests in forcing separation. It is precisely the psychic and emotional harm that separation creates that the administration want to inflict on migrants in order to convince them to take voluntary departure (and not pursue an immigration claim) and convince others not to make the journey with their families. There have been many statements where Trump and administration officials have admitted as much. This, of course, is why people are troubled; the children and suffering are purposefully being used to punish and deter immigration violations. Even the criminal justice system, which locks up parents, does not treat the separation from family as part of the punishment or to serve a deterrence effect.
On Wed, Jun 13, 2018 at 12:48 PM Selby, Gardner (CMG-Austin) wrote:
Thanks very much.
I didn’t realize Flores remains under judicial review and, if I read right, in litigation. What do you consider the most accurate coverage of Flores, start to the present? Any particular other experts?
Before the Flores agreement, what governed separations of parents and children?
g.
1:54 p.m.
June 13, 2018
Quick response:
First thing to note is that Flores says nothing specifically about separating children from parents (at least as far as I recall). It doesn't condone it. It doesn't require it. It is focused on the treatment of children who are in federal "custody." In fact, it was a legal question up until 2015 whether Flores even applied to "accompanied" children like the ones we're talking about here (as I noted). The Ninth Circuit said it did, and it is that recent decision that the administration is now using to justify why separation is now necessary to comply with Flores. It is also the same reason they are invoking the TVPRA (i.e. "the democrats), by separating children the administration is arguing that the children are now "unaccompanied." As a result the TVPRA requires these children to be transferred to ORR, and cannot be under the jurisdiction of DHS (who is in charge of the parent). The DHS and ORR split is another reason they say the federal government cannot keep them together.
The second is that although Flores is settled (it is a settlement between the government and the parties), it is always under the supervision of courts, and parties are always going to court with the Flores settlement in hand to claim that the government is violating the agreement. The courts continue to ensure compliance with the settlement. This is what led up to the recent spike in litigation over Flores. There might be a better resource, but this AILA website page documents some of the recent litigation over Flores, from Flores v. Reno, to Flores v. Holder, to Flores v. Sessions. I believe the DOJ under sessions is looking to challenge Flores again and more extensively, but their last effort to do so in 2017 failed in the Ninth Circuit. They may even be turning to Congress to subvert Flores more specifically. This, of course, just represents the big litigation. There are, as far as I have heard, many parties in several states raising Flores challenges saying that the manner in which children are treated or detained right now in ORR facilties (after being separated from parents, or unaccompanied right from the start) violate the substantive requirements of Flores in terms of conditions and/or bond hearings. This, of course, is nothing new. Obama faced lots of lawsuits regarding his own compliance with Flores when he first set up family detention centers following the surge.
As for governing the separation of children from parents, there has never been any law or settlement specifically addressing that. Flores was not specifically about the treatment of children with parents. There was no specific law on treatment of children prior to Flores either. Part of the reason for this is that it was relatively rare for children to migrate on their own or even with a parent. We went from a long period where the typical migrant was adult males traveling alone, to recent years where women and children constitute a large proportion. (Part of the reason for this is the reason why migrants are coming, moving from pull factors to push factors).
The closest analogy was what happened when the federal government conducted an immigration raid that led parents to be apprehended, while their children (many of whom are US citizens) were left behind in schools and daycare. That led to some backlash when W. Bush pursued raids zealously early in his administration. But even then, the federal government usually tried to coordinate with local officials about children, and often released the parents after processing so that they could be reunited with their children until their removal proceeding. This was also interior enforcement actions where the children were not themselves not under the custody of the federal government.
Presumably, that means before Flores (and even after), there was no requirement that children be kept with their parents. At the same time, up until now, the government seemed to have tried their best to avoid separating children from parents, especially when there is no other family members to receive the children. If there was a policy on this, the policy seemed to be against separation. This is what has changed. This is also why even cynical immigration advocates and scholars are
1:56 p.m.
June 13, 2018
I forgot the include the link to the AILA website: http://www.aila.org/infonet/flores-v-reno-settlement-agreement
On Thu, Jun 14, 2018 at 12:37 PM Selby, Gardner (CMG-Austin) wrote:
Is it fair to say that you’ve told us Ted Cruz was correct that under Flores, children must be separated from parents who are jailed -- but that’s still a misleading statement?
I am not yet understanding how to reconcile your analysis with Denise Gilman’s response, which I am pasting below.
I asked her if any part of the Flores settlement requires the separation of children from parents.
Gilman emailed:
Absolutely not. The Flores settlement is found here - http://www.aila.org/File/Related/14111359b.pdf As you can see, the purpose of the settlement is to keep kids out of detention by reuniting them as quickly as possible with family, with preferential reunification with a parent. In the current separation cases, the parent is here and available, so the child should be released to and with the parent under Flores The only reason a parent becomes unavailable is that the government exercises its discretion to prosecute, in an unprecedented manner, in order to take the parent away temporarily for a criminal court hearing and time served. But even then, after the plea, the parent and child could be reunited and released or at least reunited and detained together. The government is making the parent unavailable and then treating the child as unaccompanied and placing the child in ORR custody and the parent in adult immigration detention; this result is not required by Flores and arguably is not permitted by Flores since Flores requires children to be released preferentially to a parent.
Litigation relating to Flores in the family detention context in the 9th circuit in California has imposed a rule of thumb 20-day limit on family detention, because kids are not supposed to be detained for lengthy periods under Flores. See http://www.aila.org/File/Related/14111359p.pdf Maybe Cruz is asserting that this rule means that after 20 days kids can no longer be detained with their parents. But this is misleading. Again, in the family separation cases, the kids are NOT being held with their parents in family detention centers. So the 20-day rule is not relevant at all. The kids are being forcibly removed from their parents at the border. And then the kids are sent to ORR and the parents to immigration detention. In addition, before the new zero tolerance policy, the government had implemented the decisions on Flores without difficulty by detaining families together and then releasing moms and kids from family detention centers together before the 20-day mark if they pass a credible fear interview. So flores has never required separate detention and does not do so now. Now the government wishes to hold the parents indefinitely, so it seems to be arguing that it must therefore separate parents and kids since the kids can’t remain detained indefinitely under Flores. Instead, though, the government must comply with its obligations under Flores to release kids and must also comply with its constitutional obligations not to separate families. It can only do so by halting its practice of separating families at the border and either: 1) releasing families after processing at the border; or 2) where absolutely necessary detaining families in family detention centers and releasing them before 20 days (into the community if they pass a credible fear interview or upon deportation if they fail the credible fear interview).
In any case, the government’s position on the family separation has been that it is a natural consequence of criminal prosecutions for unlawful entry (which are not precedented, not required and are intentionally being used to separate families rather than as a genuine law enforcement mechanism for dealing with a misdemeanor crime). Flores really has nothing to do with separation as a result of a criminal prosecution. Flores is about immigration detention of kids in ORR shelters or in family detention centers. Flores in no way requires criminal prosecutions and separation as a result. The administration cannot claim that the separations are a natural result of criminal prosecutions in the normal course of business and then argue that actually it’s the immigration detention rules that dictate separation. Those are two completely different strands.
12:56 p.m.
June 14, 2018
So what Denise and I said are essentially the same. How that reflects on the "accuracy" of Ted Cruz's statement, however, is where it gets complicated. The complication lies in what is assumed and not stated. This is why Cruz's statement may be technically correct, but utterly misleading. This is also why Denise's and my conclusion are both correct, though they seem contradictory.
Flores on its own does not require family separation. The settlement and the litigation surrounding it require a lot of things. At a minimum, and for our purposes, it doesn't permit children to be kept in a prison-like setting. Recent decisions have also established a 20-day standard, after which the child must be released from custody (either into the community or deported), or remain in custody if there is a good reason (danger to self or community). Here, Denise is right, and echoes what I said earlier about all the different alternatives that are available. To comply with Flores, the government can keep parents and children together in a facility that is suitable for children. It can also keep parent and child together by releasing both of them, either into the country or, if there is no legitimate claim to stay, through deportation.
However, the administration is now deciding that it will keep all parents in detention. And not in family detention suitable for kids, but in prison-like settings used for criminals. (Sessions is criminally prosecuting these parents, which is the justification for this prison-like detention). As stated earlier, Flores forbids the government from keeping kids in prison-like detention. Thus, the government is arguing that Flores requires them to release the children, either into the community or through transfer to less prison-like detention facilities under the control of ORR. But in order to release the children, while standing firm on their decision to keep the parent in prison, the children must be separated
In short, Denise is right. Flores does not require separating children from parents. The government has many ways of complying with Flores that keeps parent and children together.
Cruz is also right. If the government insists on keeping the parent in prison-like detention, then Flores prohibits children from being kept in those conditions. But the only way to keep the parent in prison and not the child is to separate the child from the parent. It is in this way that Cruz is saying that Flores "requires" the government to separate parent from child.
See how effectively (and disturbingly) Cruz and the Trump administration has framed the issue? By focusing on family separation and Flores, they obscure the real policy decisions that has led to all of this: (1) prosecuting all immigrant parents that they can, (2) requiring parents to be kept prison-like detention with no exceptions, and (3) refusing to provide family-appropriate facilities for parent and child. Flores technically leaves the administration with no choice once those decisions have been made. But it certainly isn't the case that Flores leaves the administration with no choice.
1:01 p.m.
June 14, 2018
And just to clarify, the only reason why Cruz's statement can be even remotely considered to be technically accurate here (though highly misleading) is because of the specific condition that he put into his statement.
“There’s actually a court order that prevents keeping the kids with the parents when you put the parents in jail.”
That is why I said his statement is technically correct, because Flores says you can't put children in jail. But Flores doesn't prevent "keeping the kids with the parents." Flores "prevents keeping the kids . . . in jail."
The only reason I point this out because there have been many other statements from the administration that I would label as false because they do not parse it as specifically as Cruz did here.
From: Selby, Gardner (CMG-Austin) Sent: Friday, June 15, 2018 11:37 AM
I am sharing elaboration from a Ted Cruz aide below who I had emailed with some of your responses.
Factually valid? The aide points to a particular portion of the Flores agreement.
Thank you again.
wgs
W. Gardner Selby
Editor
PolitiFact Texas
Austin American-Statesman
From: "Selby, Gardner (CMG-Austin)" Date: 6/14/18 11:50 AM (GMT-06:00)
To: "Jeffrey, Maria (Cruz)" Subject: Following up
Maria:
Can do (see below). Can you point to the language in Flores that backs up the senator’s claim?
We asked legal experts including Denise Gilman at the University of Texas School of Law if the Flores settlement requires the separation of children from parents.
Gilman replied by email:
Absolutely not. The Flores settlement is found here - http://www.aila.org/File/Related/14111359b.pdf As you can see, the purpose of the settlement is to keep kids out of detention by reuniting them as quickly as possible with family, with preferential reunification with a parent. In the current separation cases, the parent is here and available, so the child should be released to and with the parent under Flores The only reason a parent becomes unavailable is that the government exercises its discretion to prosecute, in an unprecedented manner, in order to take the parent away temporarily for a criminal court hearing and time served. But even then, after the plea, the parent and child could be reunited and released or at least reunited and detained together. The government is making the parent unavailable and then treating the child as unaccompanied and placing the child in ORR custody and the parent in adult immigration detention; this result is not required by Flores and arguably is not permitted by Flores since Flores requires children to be released preferentially to a parent.
Litigation relating to Flores in the family detention context in the 9th circuit in California has imposed a rule of thumb 20-day limit on family detention, because kids are not supposed to be detained for lengthy periods under Flores. See http://www.aila.org/File/Related/14111359p.pdf Maybe Cruz is asserting that this rule means that after 20 days kids can no longer be detained with their parents. But this is misleading. Again, in the family separation cases, the kids are NOT being held with their parents in family detention centers. So the 20-day rule is not relevant at all. The kids are being forcibly removed from their parents at the border. And then the kids are sent to ORR and the parents to immigration detention. In addition, before the new zero tolerance policy, the government had implemented the decisions on Flores without difficulty by detaining families together and then releasing moms and kids from family detention centers together before the 20-day mark if they pass a credible fear interview. So flores has never required separate detention and does not do so now. Now the government wishes to hold the parents indefinitely, so it seems to be arguing that it must therefore separate parents and kids since the kids can’t remain detained indefinitely under Flores. Instead, though, the government must comply with its obligations under Flores to release kids and must also comply with its constitutional obligations not to separate families. It can only do so by halting its practice of separating families at the border and either: 1) releasing families after processing at the border; or 2) where absolutely necessary detaining families in family detention centers and releasing them before 20 days (into the community if they pass a credible fear interview or upon deportation if they fail the credible fear interview).
In any case, the government’s position on the family separation has been that it is a natural consequence of criminal prosecutions for unlawful entry (which are not precedented, not required and are intentionally being used to separate families rather than as a genuine law enforcement mechanism for dealing with a misdemeanor crime). Flores really has nothing to do with separation as a result of a criminal prosecution. Flores is about immigration detention of kids in ORR shelters or in family detention centers. Flores in no way requires criminal prosecutions and separation as a result. The administration cannot claim that the separations are a natural result of criminal prosecutions in the normal course of business and then argue that actually it’s the immigration detention rules that dictate separation. Those are two completely different strands.
On the same topic, Rick Su of the University of Buffalo School of Law called Cruz’s statement misleading because, he said by email, it’s premised on Cruz’s assumption that there are only two options when it comes to children and their parents. But there are many, he wrote, even after factoring in the Flores agreement and the Trafficking Victims Protection Reauthorization Act of 2008, both of which require that children be placed in the "least restrictive setting."
Su wrote that it’s “misleading of Cruz to suggest that there are only two options--release or separation--when there are in fact more.”
Su added: “Let's be frank though. The Trump administration is not pursuing separation because its hands are tied, or even as a last resort in order to carry out some other policy. It is pursuing separation purposefully and directly as a policy because, as administration officials have acknowledged, it is a deterrent in itself. Under that logic, even if the Flores agreement did not exist, there would still be deterrence-related interests in forcing separation. It is precisely the psychic and emotional harm that separation creates that the administration want to inflict on migrants in order to convince them to take voluntary departure (and not pursue an immigration claim) and convince others not to make the journey with their families. There have been many statements where Trump and administration officials have admitted as much. This, of course, is why people are troubled; the children and suffering are purposefully being used to punish and deter immigration violations. Even the criminal justice system, which locks up parents, does not treat the separation from family as part of the punishment or to serve a deterrence effect.”
We also connected with Peter Schey, the attorney who heads the center that helped represent plaintiffs in the dispute leading to the Flores agreement. By phone, Schey called Cruz’s claim “completely inaccurate,” saying the Flores agreement in no way suggests children must be separated from parents. Notably too, he said, parents can (and do) opt out from Flores’ rights related to children being released to others. Schey further said the 2008 statute (also noted by Su) explains why minors have lately been put in the custody of DHS. Schey said federal authorities have been separating children from parents “in order to create the harshest situation possible with the idea that word will filter back to Central America and this will discourage families from coming to seek asylum in the U.S.” He stressed nothing in Flores requires separations.
g.
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W. Gardner Selby
Reporter / News
Austin American-Statesman
PolitiFact Texas
From: Jeffrey, Maria (Cruz) Sent: Friday, June 15, 2018 11:11:40 AM
Hi Gardner,
Thanks for sending. Here is our response:
Senator Cruz’s statement was that a court order “prevents keeping the kids with the parents when you put the parents in jail.” In those cases, when adults with minor children are apprehended and detained, the minor children must be placed in “the least restrictive setting appropriate to the minor’s age and special needs,” per Section IV of the Flores agreement. Adult detention centers are not the least restrictive setting for children, and Section VI of the agreement further requires a presumption in favor of releasing minor children, with preference given to non-detained parents or other family members who are willing to take custody of the minor child. If a suitable placement is not immediately available, the child is held in the custody of the Office of Refugee Resettlement, which offers less restrictive settings than adult immigration detention facilities.
Courts that have interpreted and applied the Flores agreement have held that the agreement unambiguously applies both to minors who are accompanied and unaccompanied by their parents. They have also held that the settlement does not provide release rights to accompanying adults. See, for example, Flores v. Lynch, available at https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/06/15-56434.pdf.
We understand that the immigration activists you contacted are telling you that the government is not required to detain the adult parents of minor children who are apprehended and charged with illegal entry. But regardless of the accuracy of that, they're not actually addressing the Senator's remark. The fact that the government could up and decide to not enforce criminal laws is not relevant to the accuracy of Senator Cruz’s statement, which assumed that the adult parents were being detained. Our point is simple and 100% correct: When the parents are detained, the Flores agreement compels placing the child with another family member or in another less restrictive setting.
Best,
Maria
11:59 a.m.
June 15, 2018
Sounds about right. It comports with what I wrote earlier about the way Cruz parsed his statement (in fact, I believe the aide italicized the same part of the statement that I did). So his statement may be technically accurate, but still misleading. Cruz is careful here in a way that some Trump administration officials have not been.
The third paragraph also aligns with my earlier comment about how the way Cruz and others are framing the debate obscures and hides the policy choices that the administration is making. Seems the aide is essentially acknowledging that by distancing Cruz's comments from the zero-tolerance policy of the administration (which is leading to the separation) and suggesting that those choices are "not relevant" to the accuracy of Cruz's remarks. The conceptual severance here is intentional and overt.