The Trump administration unveiled a regulation on Wednesday that would allow it to detain indefinitely migrant families who cross the border illegally, replacing a decades-old court agreement that limited how long the government could hold migrant children in custody and mandated the level of care they must receive.
The White House has for more than a year pressed the Department of Homeland Security to find a way to eliminate the agreement, known as the Flores settlement, a shift that immigration hard-liners inside the administration say is crucial to halt the flow of migrants across the southwestern border.
The new regulation would codify minimum standards for the conditions in family detention centers and would specifically abolish a 20-day limit on detaining families in immigration jails, a cap that has prompted President Trump to repeatedly complain about the “catch and release” of families from Central America and elsewhere into the United States.
The change will require approval from a federal judge before it can go into effect, and administration officials said they expect it to be immediately challenged in court.
“What this will do is to substantially increase our ability to end the ‘catch and release’ challenges that have fueled this crisis,” Kevin K. McAleenan, the acting secretary of homeland security, said in a news conference on Wednesday. He said the regulation “restores integrity to our immigration system” and would provide high standards for the care of children.
Immigration rights advocates denounced the new regulation, calling it part of an effort by Mr. Trump to reduce immigration by sending a message that the administration is willing to treat families and children poorly.
“This is yet another cruel attack on children, who the Trump administration has targeted again and again with its anti-immigrant policies,” said Madhuri Grewal, the federal immigration policy counsel for the American Civil Liberties Union. “The government should not be jailing kids, and certainly shouldn’t be seeking to put more kids in jail for longer. Congress must not fund this.”
The administration proposed the rule last fall, allowing the public to comment on the potential regulation. It is scheduled to be published Friday in the Federal Register and would take effect 60 days later, though administration officials concede that the expected court challenge will probably delay it.
If the new rule goes into effect, the administration would be free to send families who are caught crossing the border illegally to a family residential center to be held for as long as it takes for their immigration cases to be decided. Officials said families cases could be resolved within two or three months, though many could drag on much longer.
Mr. McAleenan said families would be detained until they were either released after being awarded asylum or deported to their home countries. Some families might be awarded parole to leave the facilities while the courts decide their fate, he said.
Almost 475,000 families have crossed the southwestern border in the last 10 months, Mr. McAleenan said, a number he said was three times the previous record for a full year. He said the number of apprehensions of families crossing illegally was up 469 percent from the previous year.
Enacting the regulation would send a powerful message that bringing children to the United States was not “a passport” to being released from detention, Mr. McAleenan said, reducing the number of families crossing illegally into the United States.
“The new rule will restore the integrity of our immigration system and eliminate a major pull factor fueling the crisis,” he said.
The 20-day limit has been in place since 2015, a legal outgrowth of a 1997 court-ordered consent decree after a federal class-action lawsuit claimed that physical and emotional harm was done to immigrant children held for extended periods in the detention facilities.
Previous administrations tried to change the rules for detaining children in efforts to reduce surges of migrants crossing the border. Mr. Trump’s Department of Homeland Security officials have repeatedly said that limiting the detentions of entire migrant families has driven the surge of Central American families who crossed the border this year.
Withdrawing from the consent decree has also been a personal objective for Stephen Miller, the architect of Mr. Trump’s immigration policy. Delays in finishing the regulation had prompted Mr. Miller to lash out at senior homeland security officials, who were ousted from the department.
The New York Times reported in April that Mr. Miller berated the former acting director of Immigration and Customs Enforcement, Ronald D. Vitiello, for not finishing the rule. Mr. Vitiello later had his nomination withdrawn by Mr. Trump, who said he was not tough enough for the job.
The Flores settlement has also been at the root of partisan debates on immigration. Democrats have said the rules established by the settlement, which limits the time children can spend in detention and establishes minimum standards for the holding facilities for families and children, were imperative to ensuring the well-being of detained children, especially after reports of children being kept in overcrowded cells and sometimes going without showers, toothpaste or hot meals.
Mr. McAleenan told the House Homeland Security Committee in May that the Flores settlement had incentivized migration to the United States, saying that “if an adult arrives with a child, they have a likelihood of staying in the United States.”
Representative Bennie Thompson, Democrat of Mississippi and the chairman of the committee, reminded Mr. McAleenan of the original purpose of the court-ordered regulations.
“Prolonged detention of children had proven to be harmful to their health,” Mr. Thompson said. “I think the court looked at it from that perspective rather than a punitive decision on the department.”
The Trump administration’s regulation, which is several hundred pages long, would eliminate a requirement that federal detention centers for immigrant families be licensed by states, most of which had no such licenses.
Instead, under the regulation, the three centers built to house hundreds of immigrant families — in Dilley and Karnes City, Tex., and Leesport, Pa. — would have to meet standards set only by ICE, which runs them.
Mr. McAleenan insisted on Wednesday that the detention centers were comfortable places for families, saying one of the facilities has a room with “a big-screen television, cushioned couches and lounge chairs, a gaming area and a separate library that contains books, other television sets, video games and board games.”
He said the new regulation would ensure that high standards for the family detention centers were maintained. But critics of the administration have long argued that the facilities were unsuitable for children for long periods of time.
Lawmakers and others who have visited the facilities have described hourslong waits in the heat for medical care, spoiled food and limited educational opportunities for children who remain in detention for long periods.
And the recent examples of horrible conditions at overcrowded Border Patrol detention centers have underscored their concerns about the residential centers. A report by the department inspector general described conditions at the Border Patrol stations that included standing-room-only cells, including children detained without showers and hot meals.
“We don’t disagree with detaining children when it’s necessary — namely, if they’re a flight risk or they’re a danger to themselves or others, we agree,” said Peter Schey, a lawyer who filed the original case and has continued to defend the settlement terms in court since. “It’s the unnecessary detention of a child that this settlement sought to end. So these regulations really reflect a flagrant disregard on the part of President Trump and his administration for the safety and the well-being of children in the care of the federal government.”
Last summer, the Trump administration began separating children from their parents as a way to get around the Flores agreement. The children were sent to the custody of the Department of Health and Human Services while the adults were imprisoned while awaiting trial on their violation of immigration laws.
A fierce political backlash forced Mr. Trump to publicly abandon the separation policy, though immigration advocates said some families continued to be separated after that announcement. Officials have said children are separated from their parents now only when there is a concern for their safety.
Administration officials said Tuesday that the effort to allow families to be detained indefinitely was an attempt to avoid having to either separate families or release them while they waited for their cases to be heard.
Even before the final rule was announced on Wednesday, immigration advocates said it amounted to a cruel effort to imprison families — some with infants or young children — many of whom are fleeing violence and corruption in their home countries.
Under the terms of the consent decree, the regulation must be approved by the federal judge currently overseeing the long-running case, Dolly M. Gee of the United States District Court for the Central District of California. The government will have seven days to file a brief in her court seeking her approval of the regulation.
If she refuses, the administration is expected to appeal her decision in a case that could drag on for months or even years, legal experts said.
via New York Times