The Trump administration is moving to formally terminate a federal court settlement restricting how long U.S. officials can detain migrant children with their parents and replace it with a new rule that could expand family detention and dramatically increase the time children spend in custody.
The Department of Homeland Security and the Department of Health and Human Services will issue a new rule Friday to withdraw from the Flores Settlement Agreement, the federal consent decree that has set basic standards for the detention of migrant children and teens since 1997.
The new rule would eliminate a 20-day cap for detaining migrant children and create a new licensing regime that would make it easier for federal officials to expand family detention nationwide.
Although the rule is set to take effect 60 days after it is published, officials expect the implementation to last longer. Advocates have vowed to challenge the rule in court, which will put the change in front of U.S. District Judge Dolly M. Gee, who denied the administration’s request last year to extend family detentions.
But officials said they hoped the threat of longer detention would deter the crush of Central American migrants at the U.S.-Mexico border and complement existing enforcement measures. Border apprehensions have slumped more than 40 percent since May, a major drop officials have attributed to increased enforcement in Mexico, but officials worry about a resurgence in the fall.
Exercising greater control over family detention would mark a major coup for the White House, which has said the Flores agreement is among the most significant “loopholes” spurring mass migration at the border. Smugglers have sold families discounted trips to the border and instructed them to seek asylum because the Flores agreement meant they were likely to be released. Such families are rarely deported, officials said.
“Today, the government has issued a critical rule that will permit the Department of Homeland Security to appropriately hold families together and improve the integrity of the immigration system,” Acting DHS Secretary Kevin McAleenan said in a statement, before traveling to Panama Wednesday. “This rule allows the federal government to enforce immigration laws as passed by Congress and ensures that all children in U.S. government custody are treated with dignity, respect, and special concern for their particular vulnerability.”
DHS officials said in a briefing Tuesday that they have no immediate plans to increase the number of family detention beds. Once the rule takes effect, officials said, they hope to complete migrants’ initial immigration proceedings within two months, which is triple the time children are held now.
Advocates for immigrants say the Flores agreement and other laws provide essential protections for children fleeing hunger, violence and poverty in other countries. They say the Trump administration has harmed migrant children by holding them in squalid conditions on the border and forcibly separating hundreds from their parents and should not be given wider latitude to detain them.
Peter Schey, one of the lead attorneys in the class-action lawsuit that led to the Flores settlement, said when the Trump administration proposed the new rule nearly a year ago that it was “doomed to failure.”
The Flores Settlement Agreement generally compels the U.S. government to move children from austere border jails into licensed, child-appropriate facilities as expeditiously as possible. The agreement does not specify a time period, but Gee ruled in 2015 that officials could not hold children in unlicensed facilities longer than 20 days — the time the government said it needed to process their initial asylum screenings — after the Obama administration expanded family detention.
Trump administration officials said the new rule seeks to address Gee’s concerns by allowing the federal government to create its own licensing regime, complete with third-party inspections and audits that will be made public.
DHS officials said expanding family detention helped reduce family crossings under the Obama administration. Family apprehensions fell from 68,000 in 2014 to nearly 40,000 in 2015. But family crossings rose again in 2016 and have hit record highs over the last year.
More than 432,000 members of family units have been taken into custody from October through July, a 456 percent increase over the same period the year before, according to U.S. Customs and Border Protection. Most have been released in the United States, officials said.
U.S. Immigration and Customs Enforcement has three “family residential centers,” two in Texas and one in Pennsylvania, with a combined capacity of about 3,000 beds. One facility is limited to adults.
DHS officials said Tuesday that detaining and deporting even a small fraction of the families, perhaps 5 percent to 10 percent of apprehensions, could send a powerful message to smugglers and would-be migrants in Central America.
While Trump administration officials say they do not plan to immediately expand family detention, they have explored the possibility. As illegal crossings rose last year, the Trump administration directed the Pentagon to identify sites with space for up to 12,000 beds for families.
President Trump and his officials targeted the Flores agreement after their widely condemned “zero tolerance” policy last year failed to deter border crossings. The policy separated more than 2,700 children from their parents to prosecute parents for crossing the border illegally. Parents went to criminal court and then immigration detention, while their children were sent to federal shelters.
In a June 20, 2018 order, Trump ended the separations and directed the Attorney General to ask Gee to let the government detain families together “throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”
Gee declined, calling the move “a cynical attempt, on an ex parte basis, to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”
Officials rolled out the proposed replacement of the Flores rule in September, and have noted that ICE family residential centers are more comprehensive than the austere Border Patrol holding facilities that have been seen in news reports and criticized by Democratic lawmakers. ICE family facilities have beds, classrooms for children, access to lawyers, health care, sports, and cafeterias.
Advocates, however, say detaining children increases their risk of trauma or illness. Several children have died after being taken into federal custody over the past year, and one of them died after being released from an ICE facility.