DHS Veterans: Biden Should Be Detaining Family Units, But Congress Must Act So He Can

DHS Veterans: Biden Should Be Detaining Family Units, But Congress Must Act So He Can

Mar 9, 2023 2 min read

WASHINGTON—Mark Morgan, Tom Homan, and Lora Ries released a statement Thursday in response to reports the Biden administration is considering detention of family units at the border to quell the ever-growing, historic crisis at the southwest border. Morgan is the former acting commissioner of Customs and Border Protection (CBP), while Homan is the former acting director of Immigration and Customs Enforcement (ICE). Both are Heritage visiting fellows. Ries is director of Heritage’s Border Security and Immigration Center and former Homeland Security acting deputy chief of staff: 

“Once again, Joe Biden and DHS Secretary Mayorkas are talking tough and acting like they’re going to return to some of the enforcement policies that helped bring illegal immigration to a 40-year low during the Trump era. Don’t be fooled.  


“If Biden is serious about detaining family units until they are removed or granted asylum—and he should be—he needs to get Congress to act. But there is not nearly enough political will in Congress to do so, primarily because politicians who talk a big game on border security lose their spine when leftist media start crying crocodile tears about ‘families being detained.’ Make no mistake, the cartels long ago figured out the massive loophole in the Flores Settlement ruling—smuggle illegal aliens to the border in ‘family units’ so that if they are detained, they will be released after 20 days.  


“There is often little proof to establish that these units are actually legitimate families, and of course, another major consequence of Flores is the increased trafficking of minors, who help create the perception of a family unit. It’s an unworkable ruling held in place by a single federal judge, and is long past its expiration date.” 

BACKGROUND: For such a detention policy to take effect, Congress would have to pass legislation to set aside the Flores Settlement Agreement, a judicial ruling requiring that family units detained for illegally crossing the border be released after 20 days if their asylum claim is not resolved. Given the asylum system backlog, 20 days was an impossible standard before the Biden border crisis and is much more so now given the historic number of claims that have been filed since Biden took office—most of which, the data show, will be found meritless by immigration judges. 

If Flores is not set aside, Congress would have to establish “port courts”, which would require a massive amount of resources being surged to the border to expedite the handling of family units.

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