Court Approves Settlement In So-Called 'Family Separation' Case

Adults entering illegally with children in "Family units" had little fear of being charged criminally for entering illegally thanks to unwritten DHS policies discouraging agents from referring those aliens for criminal prosecution and because of an unwritten DOJ policy not to accept section 275 cases involving such aliens.

The other two are detention under section 235(b) of the INA, which Congress has mandated for all inadmissible "Applicants for admission" and return back across the border to await removal hearings, under section 235(b)(2)(C) of the INA. Return back was little-used in the spring of 2018, better known as "Remain in Mexico", the next year), while under a 2015 district court order in Flores v. Lynch, which interpreted the 1997 Flores settlement agreement, DHS could only detain children who entered in FMUs for 20 days.

Ms. L quickly became a vehicle for immigrants' advocates to challenge all DHS family separations, and on June 26, 2018, Judge Sabraw issued an order enjoining the government from detaining members of that class without their children, subject to limited exceptions.

Then-candidate Joe Biden hammered Trump over the issue, asserting on his 2020 immigration campaign website: "It is a moral failing and a national shame when ... President Trump uses family separation as a weapon against desperate mothers, fathers, and children seeking safety and a better life."

Under clause V(C)(5) in the settlement agreement, no alien can be charged with felony reentry under section 275(a) of the INA if it will result in separation.

Thus, regardless of how flagrantly an alien has violated section 275, that alien would have virtual immunity from prosecution under the Ms. L settlement agreement.

Biden's refusal to hold aliens subject to those provisions was the subject of litigation in Texas v. U.S., a case in which the Supreme Court ultimately ruled that it could not force the administration to detain such aliens. 

https://cis.org/Arthur/Court-Approves-Settlement-SoCalled-Family-Separation-Case