Q: How does the Flores v. Reno agreement apply to detention policy at the southern border? A: For three decades, enforcement of immigration laws affecting unaccompanied minors entering the United States illegally was governed by an agreement first issued by the U.S. District Court in Central California. This agreement effectively set detention standards for “safe and sanitary” facilities housing migrant children and imposes a 20-day limit of federal detention to encourage placement with parents, foster families, legal guardians or other adult relatives. During the Obama administration, a federal court in California dramatically expanded the Flores settlement and applied it for the first time to children apprehended with their parents at the border. Even the Obama administration opposed this interpretation of Flores. This interpretation triggered the controversial “catch and release” program by Obama’s Department of Homeland Security that resulted in tens of thousands of families crossing our southern border. The 2015 ruling was upheld by the Ninth Circuit, effectively creating a Hobson’s choice for federal authorities tasked with enforcing immigration laws. Either separate parents and children by releasing only the children after 20 days or keep families together and release them all into the United States. The Trump administration launched a “zero tolerance” policy in April at the southern border following surges in illegal border crossings. The Attorney General directed federal prosecutors to step up enforcement of longstanding immigration laws and prosecute all those who enter the country illegally. Because of the Flores agreement, the administration’s decision to prosecute all illegal entry created unsustainable consequences. More than 2,500 illegal immigrant children were separated from their parents. Nearly one-third remain in government custody. Congress deserves ample blame for failing to fix the Flores settlement through legislation.

Q: How would you amend the Flores settlement to improve immigration enforcement? A: As chairman of the Senate Judiciary Committee, I used our annual oversight hearing of the U.S. Immigration and Customs Enforcement to examine the administration’s family separation and reunification efforts. No one disputes that every child, no matter the circumstances, must be treated humanely and receive quality care. Unfortunately, the “catch and release” policies telegraphed a dangerous opportunity for criminal wrongdoers. No child should be taken advantage of or exploited by smugglers, traffickers or others seeking to make money at a child’s expense. According to the administration, border patrol authorities counted a 314 percent increase in adults and children fraudulently claiming to be a family unit in the previous five months. Congress can fix the Flores settlement through legislation that repeals the time limitations governing accompanied illegal immigrant children in federal custody and puts into statute the high humane standards we expect families to be treated with during detention in family residential centers. Under the “catch and release” policy, families are released into the United States and asked to appear for a future court hearing. It’s typically scheduled on average 700 days after their release. And there’s no guarantee they will show up. On the other hand, families who are detained typically resolve their cases before an immigration judge within 40 days. The ranking member of the Judiciary Committee, Senator Dianne Feinstein, and I also used the hearing in July to examine the treatment of families and children in federal custody. We’ve asked the inspectors general of the Departments of Homeland Security and Health and Human Services to open investigations into allegations of physical, mental, emotional and sexual abuse. Any person taken into custody by federal immigration authorities should be treated with human decency and dignity and receive basic standards of quality care. Through congressional oversight and legislation, I will work to make sure no person who is detained by federal immigration authorities suffers abuse and indignities while in custody. And I will continue working for a long term solution to our broken immigration system, including reforms to secure our borders, create a lasting solution for young immigrants brought to the U.S. through no fault of their own, improve the electronic employee verification system, end the diversity visa lottery and limit chain migration. It’s a tall order. Until Congress stops using immigration as a tool to score political points, the road to a resolution will remain rocky.