(CNN) — The White House is reviewing a plan that could nullify a settlement that immigrant children that arrive with their families be released from custody within 20 days, a rule they have blamed for their separation of thousands of families at the border.
The action to finalize regulations on the topic, revealed in a government database, comes after repeated attempts to change the Flores Settlement Agreement have been resoundingly rejected by a federal judge and amid continuing fallout over the Trump administration’s related decision to separate families at the border.
The Trump administration has made the Flores settlement a frequent target of its ire — blaming the agreement for its decision to implement a policy at the border that resulted in thousands of families being separated. It has also repeatedly said only Congress can act to overrule the settlement. But lawmakers have shown little appetite to do so and have so far failed to pass any immigration legislation under this administration.
Key provisions of the agreement dictate minimum standards of care of immigrants in detention, as well as requiring that children who arrive with their families be released from custody within 20 days unless their parent agrees to them being held longer. But three weeks is faster than their immigration court cases can be processed, leading the Trump administration to complain the agreement forces them to either release the families together or separate them.
The agreement, along with a 2008 law, is designed to protect immigrant children who end up in government detention or cross the border illegally. The administration has blamed those protections for changes in migration patterns, pointing mainly to the fact that the two things occurred in roughly the same time period.
Immigration and Customs Enforcement, and White House Office of Management and Budget did not return requests for comment.
Efforts to end
CNN does not have a copy of the draft. In a previous government database filing, the administration described the regulations as a way to detain families and nullify the settlement.
“Through this rule, (Immigration and Customs Enforcement) will create a pathway to ensure the humane detention of family units while satisfying the goals of the FSA,” the filing states.
The administration’s attempts to modify pieces of the agreement on the care of minor children in court, including the rule requiring release within 20 days, have been soundly rejected by Judge Dolly Gee. She has overseen the agreement for years and also rejected similar arguments from the Obama administration.
The Justice Department formally requested some modifications from Gee after President Donald Trump directed them to in his executive order reversing course on family separations.
By formally sending these regulations for review, the government could effectively take the issue out of the court’s hands entirely.
But it’s not clear the plan will work.
The settlement requires that the regulations “not be inconsistent with the terms” of the settlement, meaning that the plaintiffs in the original case would be able to bring a legal challenge if they disagree. That would likely end up in front of Judge Gee once again.
The regulations will have to go through the full regulatory process.
They are currently under review at Office of Management and Budget, and after they are approved will be published. That will initiate a clock for comments before they are finalized. Once they are finalized, they could be challenged. The settlement agreement would not formally terminate for 45 days after publication of the regulations.