WASHINGTON – The Trump administration has announced it will use executive authority to nullify the Flores settlement in the context of migrant detention. James Carafano, Heritage vice president for national security and foreign policy, and Mike Howell, senior advisor for executive branch relations, released the following response to the announcement:

“For years, Congress failed to close a gaping loophole in the immigration system that has contributed significantly to the security and humanitarian crisis on our southern border. The U.S. should not have to choose between enforcing our immigration laws and keeping families together. Terminating the Flores Settlement Agreement will ensure that more illegal border crossers will be processed through the legal system instead of simply being released into the United States. This will deter future smuggling operations and weaken the incentives to exploit children for the purpose of gaining access to the country.

“The Flores Settlement Agreement, which was responsible for many family separations, was the result of the Ninth Circuit’s judicial activism. The rule has been weaponized to create chaos and overload our immigration court system and detention facilities. Abandoning Flores is a vital step in restoring the rule of law and moving toward an immigration system that once again works for all Americans.”

BACKGROUND: The Flores settlement, first adjudicated in 1997, was interpreted in 2015 to require the Department of Homeland Security (DHS) to release from its custody all migrant children, even if they are with their parents. The result is that when adults cross the border with a child, DHS is required to release the child within 20 days. Since the parents broke the law by crossing the border illegally, the government tries to detain and prosecute them after their asylum claims are completed. And, since that will take more than 20 days, DHS has to release the child, leaving the government with the choice of detaining the parents or releasing them all. With the end of the zero tolerance policy, DHS has decided that it will simply release anyone accompanied by a child in order to comply with Flores v. Reno.

For more information, and Heritage recommendations on closing loopholes in the asylum system: Immigration Law and Enforcement in Dire Need of Clarity and Major Overhaul