The Sue and Settle Scam

August 1, 2023

By Matt O’Brien

Whenever those in favor of erasing America’s borders find that they lack legal authorization for their preferred course of action, they wait for a sympathetic administration to take power. Then they file a lawsuit. The plaintiff and the government settle that lawsuit by negotiating an agreement that contractually obligates the government to pursue whatever policies the plaintiff favors (typically involving something the government has no legal obligation to actually do). And that agreement remains in force, even after the sympathetic administration that negotiated it is voted out of office. Insiders call this the “sue and settle scam.”

The most famous example of this tactic is the Flores Settlement. In 1985, Jenny Lisette Flores illegally entered the United States on her own. She was, thereafter, apprehended by the Immigration and Naturalization Service, which detained her. Several migrant aid organizations filed suit claiming that Flores’ detention was unconstitutional. Ultimately, her case went all the way to the Supreme Court of the United States (SCOTUS), were Flores promptly lost, with the High Court finding that her detention was both reasonable and lawful.

The case was then remanded to the federal district court in California. And, rather than requesting implementation of the SCOTUS order reversing the lower courts, the Clinton Justice Department signed a settlement agreement that abolished anything but short-term detention of alien minors. Unfortunately, the Flores Settlement has been left in place, and 30 years later, it still dictates how minors are detained, effectively prohibiting the Department of Homeland Security from dealing with the serious border security problems that unaccompanied alien children pose.

Just to make sure this is crystal clear: Nothing to which the Clinton Administration agreed in the Flores settlement was in any way necessary – since the Supreme Court had previously ruled that the regulations governing the detention of alien minors were perfectly acceptable. The Flores agreement was a gift, by the Clinton Administration, to pro-illegal-alien groups that couldn’t convince legislators to enact the detention rules they wanted.

Now, it looks like the Biden Administration is about to use the sue and settle scam to prohibit Customs and Border Protection (CBP) from separating adult aliens from children who may be traveling with them. Eric Matute Castro and his minor son illegally jumped the border with Mexico in 2017. After being apprehended by CBP officers, they were detained separately. Matute Castro filed suit – claiming he was inappropriately separated from his son. Team Biden has entered into a settlement agreement.

Anyone with any experience in law enforcement knows that when an adult is arrested with a child, the two are promptly separated. This occurs for a variety of reasons: Sometimes it’s unclear whether the adult has lawful custody of the child. Even where the grown-up has custody, he/she may be suspected of neglect or abuse. In other situations, a parent or guardian may have been caught during the commission of an offense that doesn’t involve the child at all but – purely for the safety of the child – the young person and adult can’t be detained together.

All of the foregoing examples apply to CBP operations. CBP personnel encounter the whole panoply of standard crimes ranging from the use of children to smuggle drugs, to child sex trafficking, to kidnapping. They also run up against situations that state and local law enforcement officers rarely see, like children being used as props to commit immigration fraud and cross-border custodial interference (when a U.S. based parent who doesn’t have child custody kidnaps his/her child abroad and brings the child to the United States).

Accordingly, it has long been standard procedure for immigration officials to separate adults and children traveling together when enforcement actions become necessary. Prior to the presidency of Donald J. Trump, that was never a problem. Once President Trump took office, however, the anti-borders contingent began decrying so-called “family separation” as a Trump-specific tactic aimed at oppressing aliens.

When Joe Biden took office, he continued to beat the family separation drum, promptly launching an “Interagency Taskforce on the Reunification of Families.” And even as late as August of 2022, Biden allies in the mainstream media continued the hysteria, with The Atlantic running a piece falsely claiming that Trump-era immigration officials deliberately created family separation to tear migrant families apart.

Those hyperbolic claims, in turn, led to a flurry of lawsuits challenging the practice of separating children from adults being arrested at the border. Most of those legal actions faded into oblivion for one simple reason, foreign nationals who are caught illegally entering the United States have absolutely zero right to demand that they be detained with minors accompanying them. The Matute Castro suit likely would have gone the same way – but for the Biden administration’s absurd settlement agreement.

The terms of the Matute Castro settlement agreement have not yet been publicly disclosed. It is unclear whether they will be limited to the specific facts of this plaintiff’s case or whether, like the Flores agreement, they will place an onerous burden on immigration officials. Nevertheless, it is safe to say that whatever terms the Biden Administration agreed to will advance neither the safety or security of the American public.

Matt O’Brien is the director investigations at the Immigration Reform Law Institute and the co-host of IRLI’s podcast “No Border, No Country.” Immediately prior to working for IRLI he served as an immigration judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.

Also published at The Washington Times, August 1, 2023.