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Trump's Goal To Get Tougher On Immigration Will Have To Involve The Flores Settlement


President Trump told reporters at the White House today he does not plan to revive his administration's policy of separating migrant families who cross the U.S. border.


PRESIDENT DONALD TRUMP: We're not looking to do that.


TRUMP: Thank you very much.

UNIDENTIFIED PERSON #2: You're not looking to bring it back?

TRUMP: But it does make - it brings a lot more people to the border. When you don't do it, it brings a lot more people to the border. We are not looking to do it.

SHAPIRO: But Trump says he does want to get tougher on immigration.


To do that and still comply with the law, his administration will have to wrestle with a decades-old legal settlement. It's called the Flores settlement, and it dictates how long the government can keep migrant children in detention with or without their families.

SHAPIRO: It says within 20 days, the government has to release the children from detention either to an authorized adult or to a foster-care-type facility. Most immigration proceedings take longer than 20 days, which is why the administration has sought to reconsider the settlement.

CHANG: Now, the Obama administration was faced with a similar challenge during a surge in migration a few years ago. That's when Seth Grossman was deputy general counsel at the Department of Homeland Security. Welcome.


CHANG: The administration - the Trump administration's been seeking to modify the settlement. First of all, how would the White House have the authority to modify a court settlement that's been in place for two decades?

GROSSMAN: The administration has that authority because one of the parties to the settlement is the Department of Justice. So the Department of Justice can go to the judge who's in a district court in California who oversees this settlement and ask for modifications. And over the years, various administrations have sought modifications to the settlement. And that's what they have done here and previous administrations have done, as well.

CHANG: Now, does Congress have the power to change these rules - I mean, if they passed a law allowing the detention of families for say, three entire months?

GROSSMAN: So it is possible that Congress could pass legislation that would overturn the Flores settlement. And in fact, there have been bills proposed, at least in the last Congress, that would have done that in various ways. There are still constitutional concerns related to due process and other bases that would still be a basis for challenging this policy. And I think it's very likely, given the challenges that have come to other Trump administration policies, that we would see those challenges immediately. And so I think it's unclear whether, ultimately, such a statute would survive judicial review.

CHANG: I mean, if it is too much of an uphill battle to modify the settlement or if Congress cannot pass a new law, is it even feasible to get immigration proceedings down to fewer than 20 days?

GROSSMAN: It could be possible if they surge the amount of resources to hire a number of new immigration judges if...

CHANG: And asylum officers and ICE attorneys.

GROSSMAN: Exactly. Right. And if they then put these cases at the front of the queue, in terms of pending cases - you know, there's a huge backlog of cases in immigration courts...

CHANG: Exactly.

GROSSMAN: ...Which is often why these cases can take several years. So you would need to rejigger the queue and put them at the front of the queue. There's been various efforts in - at different times to try to do that. None of them have been all that successful. So is it theoretically possible? Yes. Is it in a reality possible? Probably no.

CHANG: So Seth, you were deputy general counsel in Homeland Security during the Obama administration. You wrestled with very similar challenges with the surge in migration a few years ago. Were there options that we haven't discussed yet, options in - whether it be modifying the Flores settlement or outside of that realm that aren't being considered actively right now by the Trump administration that you would suggest?

GROSSMAN: I think the Trump administration has put forth most of the likeliest options there, in terms of trying to seek to modify the settlement. They're seeking regulatory change. They've suggested they're going to speed up the cases. They're suggesting they're seeking congressional change. I mean, I think there are other options that may not align with their vision that could really help, using a greater use of alternatives to detention, such as ankle bracelets or other things to track people without actually detaining them. And then they could undertake efforts that have been undertaken in the Obama administration - to some degree, the Trump administration - and try to work with the countries about the reasons for the surges in people coming across, seeking asylum, dealing with the economic conditions and the violence.

You know, I think these are hard problems that, as you said, the Obama administration struggled with, and there are no easy solutions. I think there are some more humanitarian solutions that could better address the situation facing the people crossing, but may not have the deterrent effect that the Trump administration is clearly looking for.

CHANG: Seth Grossman was deputy general counsel at the Department of Homeland Security under President Obama. He's now at American University. Thank you very much for joining us today.

GROSSMAN: Thanks. It was my pleasure. Transcript provided by NPR, Copyright NPR.