Grassley, Tillis, Cruz Op-Ed: Fixing Flores agreement is the only solution to immigrant family separation and detention

Like millions across our country, we too were horrified at the sight of thousands of children being separated from their parents. As parents ourselves, we can only imagine the pain and anguish these families faced. But, as U.S. Senators — and more importantly, as Americans — we also understand that our immigration system must also enforce our laws.

 

While this problem has persisted across the last five administrations, and there is legitimate criticism which can be directed towards this administration’s handling of this matter, the fact remains that the very institution in which we serve — the U.S. Congress — bears much of the blame for our current immigration crisis. For years, Congress has failed to take one simple step which could have prevented the family separations we now decry: repealing the Flores v. Reno consent decree as it relates to families. 

 

When the U.S. government first entered into the Flores consent decree it was a much-needed step towards ensuring the humane and dignified treatment of unaccompanied alien children — children often thousands of miles from their parents. That decree required immigration authorities to release children from custody within 20 days in favor of finding foster families or other placements. But in 2015, a single court in California expanded Flores to children with their families, an expansion with dramatic consequences.

 

That decision, which was upheld by the Ninth Circuit Court of Appeals, effectively forces federal immigration authorities to make a stark choice: separate families by releasing only the children after 20 days or keep families together and release them all into the U.S. Neither of these options is a good choice. We should not have to choose between tearing children from their parents and enforcing our nation’s lawful immigration system.

 

It’s important to remember that no one wants to get rid of the good parts of Flores. For example, Flores required, among other things, certain minimum standards of care for unaccompanied alien children while in federal custody. No one disagrees that everyone in federal custody should be treated humanely, which is why Congress unanimously passed legislation in 2008 codifying many of these standards for unaccompanied children. 

 

But Congress has yet to address how to process families detained because they came here illegally. As a consequence, a single federal court can — and has — ordered us to return to the failed “catch and release” policies that have caused tens of thousands of families to make the dangerous journey to cross our southern border. By fixing the current immigration laws and legislatively modifying the Flores decree as it applies to family units, we can solve these problems in a humane and fair way.

 

For weeks, we have worked together with our Senate colleagues in a bipartisan fashion to solve this crisis. After countless hours of discussion, we believe the path forward is a relatively simple one. First, Congress needs to make clear that the Flores consent decree does not apply to family units. The Flores consent decree and the standards of care required for unaccompanied minor children would remain in effect, but federal authorities would have the ability to keep families together pending the outcome of their immigration case.

 

Second, Congress needs to codify the high humane standards we expect families to be treated with while they are kept in federal custody in family residential centers. The public is right to be concerned that individuals may receive inadequate care and shelter, and Congress should ensure that no one is treated with any less dignity than they deserve.

 

Third, and finally, Congress should authorize and appropriate money for more immigration judges, so that cases can be adjudicated and resolved quickly. Keeping families in federal custody temporarily is an appropriate policy solution to this crisis, but only if cases are resolved expeditiously. 

 

Fixing these problems will end this crisis and return integrity to our nation’s lawful immigration system.

 

Some of our colleagues criticize these solutions and claim they would result in the “indefinite detention” of families. This simply is not true and ignores well-established facts. When families are kept in federal custody they are placed on the expedited detained docket, where most cases are resolved within about 40 days.

 

It is clear that a legislative fix to the Flores consent decree is the only viable solution. Such a fix will allow families to stay together and will ensure no future administration has to make the Hobson’s choice created by the Flores consent decree if another surge in illegal migration of family units occurs. We hope our Democratic colleagues will join with us to pass such a fix in the U.S. Senate. We can keep families together and respect the rule of law. We believe this is the way forward, and we know it is the right thing to do for our country.

 

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