The Trump administration is moving to end a court settlement that limits its ability to hold migrants who cross the border into the United States, the Department of Homeland Security announced Wednesday, potentially allowing for indefinite detention of children with their parents.
President Donald Trump and his administration for years have chafed at the limitations resulting from the settlement, known as the Flores agreement. Acting Homeland Security Secretary Kevin McAleenan said Wednesday the new policy would get rid of an interpretation of Flores that has “substantially caused and continued to fuel” a migrant crisis at the southern border.
Under the Flores settlement, minors can only be held in non-secure, licensed shelters and must be discharged from government custody “expeditiously.” A judge recently interpreted that time limit to generally mean 20 days.
McAleenan said the new rules would take effect 60 days after publication in the Federal Register, expected Friday. He said the changes would reduce the incentive to use children as “pawns” to cross the border. McAleenan said the regulations would allow families to be held together in custody pending immigration hearings and establish national standards for holding children in detention.
“The Trump administration has established a new rule to respond to the realities of current immigration flows, a rule based in the principle that families should remain together during immigration proceedings,” McAleenan said.
Trump said in a statement the changes would reduce the incentive to smuggle children and close what he called loopholes for people who do so in order to be released into the country.
“To protect these children from abuse, and stop this illegal flow, we must close these loopholes. This is an urgent humanitarian necessity,” he said.
The new policy has some “fairly dark” practical implications, according to Katie Shepherd, the national advocacy counsel for the American Immigration Council’s immigration justice campaign. She argued that the federal government has no obligation to detain families and does so despite evidence that it harms children.
“The proposed regulations will likely lead to the indefinite detention of immigrant children and in so doing seriously undermines the spirit of Flores,” Shepherd said.
In a freewheeling media event Wednesday Trump blamed President Barack Obama for the family separation policy that caused a controversy earlier in his presidency. Trump claimed the changes in the rule, along with other changes like the construction of a wall on the southern border, would discourage immigration.
“One of the things that is happening, when they see you can’t get into the United States — or when they see if they do get into the United States they will be brought back to their country — they won’t come. And many people will be saved,” Trump said.
Speaker Nancy Pelosi accused the White House of “seeking to codify child abuse.”
“The indefinite and prolonged detention of children would compound the cruelty and accelerate the heart-breaking humanitarian situation at the border, worsening conditions for children already forced to sleep on concrete floors, eat inedible food and be denied basic sanitation and standards of care,” she said in a statement.
“This inhumane and utterly unconscionable rule circumvents the conditions set in the Flores settlement, and we expect the District Court to swiftly strike it down,” Pelosi added.
The new rule would, under the administration’s own assessment, result in additional or longer detention for many migrant children. McAleenan said the administration anticipates that it would have capacity to hold about 2,500 to 3,000 family members in detention, and wants to hold the family detentions to an average of about 50 days.
“There is no intent to hold families for a long or extended period of time,” McAleenan said.
However critics of the administration said such a timeline was not feasible.
On a call with reporters Wednesday, Joann Bautista, a policy associate at the National Immigrant Justice Center argued the regulation “is going to result in essentially indefinite detention no matter what the acting secretary makes it seem,” because the court cases for detained immigrants only move faster currently because they don’t have to handle the workload of the family cases.
The draft rule was released last fall, and essentially reinterprets a key aspect of the Flores settlement, the 1997 court decree that sets standards for how migrant children in U.S. custody are treated.
The Trump administration and GOP critics view Flores as a “loophole” that fuels illegal border crossings.
The 1997 decree has created “operational difficulties,” the administration wrote in the regulation, because it means that migrants with children can only be held in a few state-licensed facilities for a limited period of time.
The draft rule proposed that Immigration and Customs Enforcement facilities where third parties conduct audits be considered to fulfill the licensing requirements under Flores — allowing authorities to detain children together with their parents until the conclusion of their adjudication process. The administration called the need for state licenses “problematic” for DHS, since “states generally do not have licensing schemes for facilities to hold minors who are together with their parents or legal guardians.”
Trump is considering a slew of actions, including allowing local communities to have a say in refugee resettlement, according to an NBC News report. Trump also told reporters Wednesday he’s “seriously considering” efforts to change birthright citizenship, which is provided under the 14th Amendment to the Constitution.
Fighting Flores in court
Trump has made fighting the 1997 settlement a priority and blamed it for the “catch and release” policy for migrants on the southern border, which allows undocumented immigrants to go free as they await immigration proceedings.
On Wednesday, Trump tweeted the following comment by Brandon Judd, president of the National Border Patrol Council: “This will effectively end Catch and Release and curb illegal entries.”
McAleenan said the administration anticipates a “dialogue” in court but will try to implement the regulations as soon as possible.
The administration acknowledged that detention will have “negative impacts” on children but argues that it needs to modify the terms of the settlement in order not to separate families.
Dismantling the protections enshrined in the Flores agreement has long been on the Trump administration’s to-do list. The Justice Department has previously filed a motion in court to modify Flores in the past, but did not succeed.
Recently plaintiffs in the Flores case won a ruling from the U.S. Court of Appeals for the 9th Circuit that its conditions include requirements to provide items like toothbrushes and clean living spaces as well as adequate sleep.
The regulatory track, however, is also not without impediments. According to a Congressional Research Service report, under the administration’s draft rule “[a] legal dispute seems likely to arise over whether the proposed regulations adequately implement the Flores Settlement, including whether the regulations are consistent with the agreement’s general policy favoring the release of minors from immigration custody.”
Fighting Flores on the Hill
In Congress, lawmakers have made some recent high-profile attempts to change Flores standards. Senate Judiciary Chairman Lindsey Graham, R-South Carolina, pushed through his panel an asylum overhaul bill that would allow families to be detained together for longer than 20 days.
In an appearance on “Fox News Sunday,” Graham called on Senate Majority Leader Mitch McConnell, R-Ky., to bring his bill to the floor. “If you don’t change the Flores decision, you don’t require asylum applications in the home country or Mexico, they will keep coming. They will never stop coming. And we need to change our laws,” Graham said.
The bill has little hope of passing the Democrat-controlled House, and funding to implement Trump’s new rule will likely become a flashpoint in September budget negotiations. Lawmakers will need to pass a stopgap spending measure by Sept. 30 or the federal government will partially shut down, as none of the 12 annual appropriations bills have yet been signed into law.
“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,” American Civil Liberties Union policy counsel Madhuri Grewal said in a statement.
Lindsey McPherson contributed to this report