Trump Administration Moves To Abolish Child Migrant Custody Limits

WASHINGTON –The Trump administration said Wednesday it was
taking steps that would allow it to indefinitely detain
undocumented children with their families while their immigration
cases are pending.

The move, which Department of Homeland Security officials expect
to be challenged in federal court, is an effort to end a 20-day
limit on detaining children and families. The deadline grew out of
a 1997 settlement of a federal class-action lawsuit, which
administration officials said led to a boom in adults bringing
along children when entering the United States illegally.

President Donald Trump tweeted a quote Wednesday from Brandon
Judd, president of the National Border Patrol Council, who said the
proposal “will effectively end Catch and Release and curb illegal
entries.”

The effort to remove the cap on family detentions would keep
families together, albeit in custody, rather than separating
families by placing parents with Immigration and Customs
Enforcement and children at facilities licensed by the Department
of Health and Human Services. The administration’s proposed rule
would allow it to license and monitor detention facilities where
children could be held with their parents until their immigration
cases are resolved, a process that can take months.

The move in the longstanding lawsuit settlement comes in a year
when the conditions at DHS detention facilities have been widely
criticized.

“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 Secretary of Homeland Security Kevin McAleenan said
in a statement. “This rule allows the federal government to enforce
the 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 special vulnerability.”

The department’s proposal comes in response to a class-action
lawsuit filed in 1985. In the 1997 agreement that ended the
lawsuit, known as the Flores settlement, the government pledged to
hold undocumented children in the least restrictive setting
possible. The settlement eventually was applied to undocumented
children who arrived with their parents and has constrained the
government’s power to detain families for longer.

In 2015, the Obama administration attempted to hold migrant
children who arrived as part of families in federal detention in
Texas. But a California judge ruled that the Flores settlement
applied to those children, meaning that families couldn’t be held
longer than about 20 days, out of concern for the children’s
welfare.

The reason for the time limit was the lack of state licensing to
ensure the quality of family detention centers. Conditions at
federal detention facilities have been contentious. An inspector
general’s report in June described Customs and Border Protection
facilities, where migrants are housed temporarily before being
moved to longer-term detention centers, as “a ticking time bomb.” A
Justice Department lawyer sparked outrage in June after arguing in
federal appeals court that the settlement’s requirement of safe and
sanitary conditions didn’t require it to provide soap or
toothbrushes to children to children in short-term holding
facilities.

The Flores settlement would allow the government to hold
children for longer periods only in detention centers that are
licensed by a state. But no state licenses facilities where
children and their parents are detained together, according to DHS
officials.

For example, in 2016 Pennsylvania revoked the state license for
a family detention center working under contract for ICE, but the
facility remains open while the merits of the revocation are
litigated, according to a Congressional Research Service report. .
So the administration proposed a new course on Wednesday, saying
ICE would begin to license its own family detention centers.

ICE has maintained that its detention facilities for families
meet high standards for providing shelter, food, recreation and
education. ICE’s three facilities for holding families include two
in Texas – the Karnes County Residential Center and the South Texas
Family Residential Center in Dilley – and the Family Residential
Center in Berks County, Pennsylvania.

The regulatory proposal, which is expected to be published in
the Federal Register on Friday, would establish ICE licensing for
the facilities with a goal of removing the 20-day deadline for
releasing migrants. The ICE facilities would be inspected monthly
by third-party contractors.

But the regulatory proposal was challenged in federal court when
it was initially published in September 2018 and further litigation
is expected. U.S. District Court Judge Dolly Gee, who oversees the
Flores settlement, ordered DHS to file a written explanation of the
final rule within seven days of publishing it.

Critics of the initial proposal argued that it would lead to
indefinite detention. Anastasia Tonello, president of the advocacy
group American Immigration Lawyers Association, said when the
proposal was unveiled that the regulations would eliminate
long-standing, court-mandated protections for minors, resulting in
more families, including young children, being detained for longer
periods of time.

The influx of migrants in recent years has strained detention
facilities across the federal government. Customs and Border
Protection apprehended nearly 800,000 migrants so far this fiscal
year, which ends Sept. 30. But the agency has released 137,000
detainees since March 19 on their own recognizance for lack of
capacity to house them.

Families now make up a significant portion of migration, in
contrast to past years. In 2014, about 68,000 family units
attempted to enter to country illegally, compared to 390,000 so far
this year, according to DHS officials. Many of the families are
from Central America and often turn themselves in to Border Patrol
agents because they are seeking asylum.

If Judge Gee approves of the regulation, she could terminate the
Flores settlement and the regulation could go into effect within 60
days of publication.