The controversy over President Trump's executive order to end the policy of separating migrant families who cross into the U.S. illegally is shifting to the courts.
On Thursday, the Department of Justice asked a federal judge in California to relax certain limitations on how long and under what conditions the government can detain migrant children.
In another courtroom in California, a different federal judge will hear arguments on Friday in a case about family separations and the status of the more than 2,000 minors who are still detained.
That case, Ms. L v. ICE, involves a Congolese woman who came to this country seeking asylum at a port of entry near San Diego. Immigration agents whisked her 7-year-old daughter away to a facility in Chicago for four months before the two finally reunited in March.
The American Civil Liberties Union filed a class-action lawsuit and is seeking a nationwide preliminary injunction.
The judge in the case, Dana Sabraw, a Bush appointee, is holding a status conference via telephone with lawyers from the government and the ACLU to discuss how the case should proceed in light of the president's executive order.
There are two outstanding issues, according to the ACLU. First, what happens to the more than 2,000 minors who remain detained? The executive order did not say how or when they would reunite with their parents.
The second issue is that the administration appeared to give itself a loophole to resume family separations if, in the government's view, keeping a parent and child together poses a risk to the child's welfare. And the government would decide when there is such a risk.
"So we are, in short, going to ask the court to order prompt reunification of the 2,000 plus kids who have already been separated," said the ACLU's Immigrant Rights Project Deputy Director Lee Gelernt. "And to issue an injunction laying down standards when the government can separate in the future."
When contacted by NPR, the Department of Justice had no comment on this status conference or whether the administration again would seek a dismissal.
The DOJ had more to say about the Flores settlement, another major court case affecting immigrant minors. The settlement in the Flores case, reached in 1997 during the Clinton administration, basically lays out how long and under what conditions the government can hold an immigrant minor. In 2015, federal judge Dolly Gee in Los Angeles modified the settlement, ruling that immigrant minors can't be kept in jail-like settings for long. An appellate court later ruled that minors can be held for no more than 20 days.
The Justice Department is asking Judge Gee to modify that settlement in two ways. One, the government wants to hold minors together with their parents for longer than 20 days, or as long as it takes to have the asylum case of the parents adjudicated — which is to say, indefinitely.
And two, the administration wants the ability to house families in facilities that are not state licensed, as is currently required by the Flores settlement.
The likelihood that the administration can persuade Gee to modify the Flores agreement is slim. Especially since the administration, in its court motion, all but blames the settlement and Gee for the surge of families coming here to seek asylum. The administration says it can't detain and keep families together if it has to release children within 20 days.
Given Gee's past rulings, there aren't many legal experts who will predict that she would change course now.
There's no reason to expect that court battles against the administration's family separation policy will subside soon. The attorney general of the state of Washington, Bob Ferguson, announced that his state and eight others are filing a lawsuit against the Trump administration. The suit alleges that the government violated constitutional due process rights and equal protection guarantees by separating migrant families.
RACHEL MARTIN, HOST:
The controversy over the Trump administration's policy - now reversed - to separate migrant families has now shifted to the courts. On Thursday, the Department of Justice asked a federal judge in California to change limits on the government's detention of families. And today, in another courtroom in California, a different federal judge will hear arguments on the fate of more than 2,300 children who've already been separated from their parents. NPR's Richard Gonzales joins us now from California to talk about these legal battles. Hey, Richard.
RICHARD GONZALES, BYLINE: Good morning.
MARTIN: The president issued this executive order this week, reversing his policy to separate families. So he's going to keep them together in detention. But that clearly hasn't put an end to this issue, right?
GONZALES: Well, no, not at all. According to the American Civil Liberties Union, there are two outstanding issues. First, what happens to the children who are sent to shelters for young migrants while their parents were detained separately? The executive order did not say how or when they would be reunited.
The second issue is that the administration appeared to give itself a loophole to resume family separations if, in the government's view, keeping a parent and child together poses a risk to the child's welfare. Here's ACLU attorney Lee Gelernt.
LEE GELERNT: We're, in short, going to ask the court to order prompt reunification of that 2,000-plus kids who have already been separated and to issue an injunction laying down standards when the government can separate in the future.
GONZALES: I should add here that we contacted the Justice Department, and it had no comment on this case.
MARTIN: OK. So I understand the ACLU is going to make these arguments related to an existing case. What do we know about it?
GONZALES: Well, all eyes have been on the case the ACLU brought in San Diego against family separations. It involves a Congolese woman who sought asylum at a port of entry near San Diego, and her 7-year-old daughter was whisked away to a youth shelter in Chicago. The mother and daughter were finally reunited four months after being separated, but the ACLU says her due process rights were violated. And it wants a judge to clarify what Trump's executive order means. That judge in this case, Dana Sabraw, a Bush appointee, is holding a conference today to discuss how the case should proceed.
MARTIN: As we also noted, the administration is asking another judge for leeway to carry out the executive order. What can you tell us about that case?
GONZALES: This is a separate court case. It involves what's known as the Flores settlement that basically lays out how long an immigrant minor can be detained and under what conditions. It's been going on for quite a while, since before 1997. In 2015, federal Judge Dolly Gee in Los Angeles ruled, that under the settlement, children couldn't be detained in jail-like settings for very long. And an appellate court later ruled no more than 20 days.
Now, the government wants to hold minors together with their parents for as long as it takes for their criminal and immigration cases to be heard. And that can often take way longer than 20 days. The administration also wants the families to be housed in facilities that are not state licensed, as is now required by the Flores settlement.
MARTIN: So what happens if the Trump administration doesn't get what it wants from the court?
GONZALES: Many court watchers think the administration won't prevail. Judge Gee is still overseeing the Flores settlement. No one expects her to reverse course now. But the government believes that immigrants come here knowing that can't be detained for more than 20 days and most likely will be released into the U.S. until their court hearings. And the administration wants to detain the families indefinitely until they either win asylum or are deported.
MARTIN: All right. NPR's Richard Gonzales for us. Thanks so much.
GONZALES: Thank you. Transcript provided by NPR, Copyright NPR.