A simple solution to avoid Flores agreement 20-Day Rule and Violation on International Treaties
President Trump’s lawyers have told U.S. District Judge Dolly Gee in Los Angeles that, in order to carry out its new zero-tolerance policy, and also comply with a new court order by U.S. District Judge Dana M. Sabraw in San Diego to stop separating children from their parents, the government plans to “detain families together,” apparently indefinitely, “during the pendency of immigration proceedings,” which can often last many months if not years.
Such a practice would appear to conflict with Gee’s earlier court order in the Flores Agreement which requires children to be released into the least restrictive environment within 20 days.
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But there are several fully tested procedures already in use which would permit the Trump administration to implement its new zero tolerance policy without separating children from families or detaining all family members together, all while avoiding what has been called the “catch and release” problem under which many illegal immigrants did not show up for their court dates, says public interest law professor John Banzhaf.
The simple answer, he suggests, lies in expanding any one of several existing programs under which immigrants required to appear in court could be released, with their children if necessary, but under various forms of monitoring which can assure that they will be appear in court when required.
ANKLE BRACELETS – For many years, immigration officials have used ankle bracelets with built-in GPS monitoring to keep track of certain subjects. The small units, attached to the ankle, keep ICE apprised of the location of each person being monitored, and can even send an alert if he moves beyond a certain range, or otherwise engages in movements which appears suspicious. The cost of this form of electronic monitoring is reportedly less than $5.00 a day per person, compared with hundreds of dollars a day to physically detain him.
CELL PHONE ONE – A second form of electronic surveillance uses an app called SmartLink which works by requiring the subject to check in at specified times, and permits officers to monitor people without detaining them or watching them at all times. To verify the identity of the person checking in, the app uses a photo check-in picture as a biometric measure.
CELL PHONE TWO – Still another call check-in system uses voice recognition software, which is also highly accurate. Contractors provide telephonic monitoring for less than 20 cents a day, according to the Department of Homeland Security.
At least up until recently, the majority of undocumented immigrants detained at the border would be enrolled in Immigration and Customs Enforcement’s “ALTERNATIVE TO DETENTION” program which utilizes these various forms of electronic devices. This tech alternatives program works well, and reportedly has a 99.8% compliance rate, with virtually all of those being monitored showing up in court to receive justice. As of mid February, over 77,000 people were supervised under this program.
SOCIAL WORKERS – Still another method of insuring justice while avoiding physical incarceration is known as the “FAMILY CASE MANAGEMENT” program [FCMP], a program originally developed under the Obama administration in 2016, only to be abandoned by the Trump administration in 2017.
Under this program, immigrants were paired with social workers who helped insure that they would show up for their court dates. This program was almost as successful at the technical monitoring programs, with only about 2% of the immigrants failing to show up in court on time. However, its cost was slightly higher: $36 a day per person.
Trump attorneys are apparently trying to convince Judge Gee that keeping whole families in detention for extended periods of time is permitted under the Flores Agreement since they have titled their submission to Gee as a “Notice of Compliance.” More specifically, they say that “Defendants are submitting this notice of compliance to explain how the government is applying the Flores Agreement in light of this injunction.”
In what many would see as strained legal reasoning, they argue that “we believe that the Flores Agreement permits the Government to detain families together to comply with the nationwide order” [by Judge Sabraw]. . . . The Flores Agreement – as interpreted by this Court and the Ninth Circuit – put the Government in the difficult position of having to separate families if it decides it should detain parents for immigration purposes.”
Despite this new Trump claim that this new policy will not violate the Flores Agreement, the government nevertheless continues to pressure Judge Gee to modify the Flores Settlement: “We nevertheless continue to believe that an amendment of the Flores Agreement is appropriate to address this issue.”
But many observers believe that Gee, the daughter of two immigrant parents who has fought for immigrant rights, is not likely to grant their request for an amendment, nor accept their argument that it permits Trump to detain whole families, including young children, indefinitely until a trial can be held by an already overworked, overloaded, and badly backed up trial system.
As Newsday reported, “‘The chances are close to zero’ [that Gee will agree to Trump’s request], 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.'”
Almost overlooked in discussions of this new indefinite incarceration policy is that it might violate not only international law, but also specific international treaties which can be enforced in U.S. courts. Of particular interests are Article 14 of the Universal Declaration of Human Rights, and especially the Refugee Convention and Protocol to which the U.S. is a party.
Other treaties such as the International Covenant on Civil and Political Rights (ICCPR), which the U.S. has also ratified, prohibit arbitrary detention and the deprivation of liberty. The ICCPR holds that detention should only be used with an individualized determination of a need to detain, which should then be periodically reviewed by an independent court. A blanket detention policy for all illegal crossings apparently violates this principle.
So, says Banzhaf, rather than trying to hurriedly convert buildings on army bases into housing which meets all legal requirements for an estimated 20,000 individuals, and/or incarcerating entire families for months if not years until their trials can be held, the President’s advisors should seriously consider simply expanding at least one of several existing, well tested, and easily scaleable ICE programs which can permit the zero tolerance policy to remain in effect and at the same time honor the President’s request that children no longer be separated from their parents or guardians.
At least for immigrants whose only offense is entering the country illegally – and excluding those who smuggle drugs or people, those with criminal records or who otherwise present an unusual danger – permitting them to enter ICE’s already established “Alternative to Detention Program” or “Family Case Management Program” would appear to be the best – if not the only – way out of a corner into which Trump appears to have painted himself, suggests Banzhaf.