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Analysts: Legal hurdles for Donald Trump's separation policy

Federal courts would have to agree to modify a decades-old court order that restricts the time a minor can be detained in an immigration detention facility alongside their parents to 20 days.

Watched by Homeland Security Secretary Kirstjen Nielsen and

Watched by Homeland Security Secretary Kirstjen Nielsen and Vice President Mike Pence, President Donald Trump shows the executive order on immigration that he just signed in the Oval Office of the White House on Wednesday. Photo Credit: AFP / Getty Images / Mandel Ngan

WASHINGTON — President Donald Trump’s executive order calling for an end to his administration’s migrant family separation policy faces a series of legal hurdles, which legal analysts say could derail the new directive.

Responding to immense backlash over his administration’s “zero tolerance” policy that separated migrant children and parents caught entering the country illegally, Trump signed an executive order on Wednesday that reversed the practice.

But a key part of the order’s mandate to keep families together is contingent on federal courts agreeing to modify a decades-old court order that restricts the time a minor can be detained in an immigration detention facility alongside their parents to 20 days.

The odds are slim that a federal court judge will side with the Justice Department’s recently filed petition to amend the so-called Flores settlement, say legal experts who note that a request by the Obama administration amid a sharp increase in border crossings was denied.

Experts also point to the Trump administration’s previous losses in federal court cases litigated on the West Coast, including rulings against Trump’s travel ban on travelers from six majority-Muslim countries and rejecting his termination of the Deferred Action for Childhood Arrivals program that provides temporary legal status to immigrant minors who entered the country illegally as minors.

“The chances are close to zero,” said John F. Banzhaf, a professor of public interest law at George Washington University Law School in Washington, when asked about the likelihood of the federal court judge agreeing to the changes. “That same judge had a similar request from Obama and turned it down. I think it’s pretty clear that Trump is not very popular with members of the judiciary, and here the argument is ‘please modify the agreement so we can keep kids locked up longer with their parents and have a strict zero-tolerance policy.’ That to me would not be a winning argument with most judges.”

Republican House members are drafting a measure that would allow the Trump administration to override the 20-day limit, and will push for a vote on the bill this week, according to ABC News, which first reported on the development on Saturday. It remains to be seen if Senate Democrats, who have spoken out against the possibility of long-term detentions, will provide Republicans with the necessary votes for the measure to pass in the Senate.

In a court petition filed Thursday in U.S. District Court in Los Angeles, the Department of Justice argued that the Trump administration should be able to hold children in detention facilities together with their parents as they await the outcome of their immigration proceedings beyond the 20 days outlined in 1997’s Flores settlement. The administration contends an increase in illegal border crossings has created a “destabilizing migratory crisis.”

“Under current law and legal rulings it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings. It cannot be done,” Justice Department attorneys wrote in their petition to U.S. District Judge Dolly Gee.

In 2015, Gee, who was appointed to her post by Obama, rejected a similar request by the Obama administration amid an influx of immigrants arriving across the southern border. Gee at the time stated in her ruling that the Obama administration did not provide “any evidentiary basis” that amending the Flores settlement would do anything to address the influx of those crossing the border illegally.

Should Gee strike down the Trump administration’s request, the Department of Justice could appeal to the U.S. Court of Appeals for the 9th Circuit, a bench of 29 judges representing 15 western states, that previously ruled against the president’s travel ban.

If Gee were to side with the administration and allow for a longer detention period, the order could still risk lawsuits from immigration rights groups seeking to overturn any long-term detention of children. The ACLU vowed in a recent statement to fight the administration “every step of the way.”

“Trump is kind of stuck between a rock and a hard place,” Banzhaf said. “The one possible solution for him is technology.”

Banzhaf said the administration should consider other less costly options than housing families in government detention centers that are currently being employed, such as using GPS ankle monitors to ensure those released return for their immigration court hearings. Banzhaf said immigration authorities have also used voice recognition software that allows for migrants to check in with immigration officers on their whereabouts until they are scheduled for a court hearing.

Immigration attorneys and activists say they are concerned that modifying the Flores settlement could lead to the indefinite detention of children as their parents navigate an already logjammed immigration court system. Lawmakers including Sen. Ted Cruz (R-Texas) have proposed legislation to add more immigration judges to address the influx of cases, but Trump has repeatedly spoken out against such an increase.

Lauris Wren, director of Hofstra University’s Asylum Program, which provides legal aid to immigrants seeking asylum, said the Flores settlement was reached to avoid “permanently damaging” children kept in correctional-like facilities.

The agreement, which set national standards for the treatment of detained immigrant minors, stemmed from a 1985 lawsuit filed on behalf of Jenny Lisette Flores, a 15-year-old unaccompanied minor who fled El Salvador’s civil war at the time. Flores was detained by immigration authorities in California and kept in an adult detention center with adults of both sexes, where she had to submit to strip searches.

“If the only thing that the government is willing to do is the detention of these people, we will continue to have a huge problem,” Wren said. “There must be rules for what is safe and appropriate for children.”

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