The Trump administration unveiled a new rule Wednesday that allows the government to detain children until they can be deported, stripping away current legal protections for youths and possibly leading to indefinite detention.
The rule would gut the so-called Flores settlement, a 22-year-old federal court agreement that requires that children be released from custody as quickly as possible — within 20 days — and that they be held in the “least restrictive setting.”
The agreement, which regulates standards of care and treatment of minors, is the only established set of protections for immigrant children in detention.
“The Flores loophole essentially gives a free pass into the interior of the United States to many aliens who arrive at the border with a minor,” the Department of Homeland Security said in a statement. “The decades-old Flores agreement is outdated and fails to account for the massive shift in illegal immigration to families and minors from Central America.”
The number of families detained at the southern border has skyrocketed in recent years — from 14,855 in the 2013 fiscal year to 432,838 so far this fiscal year, DHS said.
At a press conference Wednesday, Kevin K. McAleenan, acting secretary of Homeland Security, said smugglers abuse Flores by selling trips across the border to immigrant families. He also said that migrant families are taught how to seek asylum and that the agreement is “designed” to have them released into the country and rarely deported.
“The new rule would restore integrity to the immigration system,” McAleenan said, noting that the government’s hope is that the rule will deter migrants from crossing the U.S.-Mexico border. “Smugglers have even fraudulently presented aliens arriving at the border as fake families to take advantage of the Flores loophole.”
The government refused to release the official 900-plus page document outlining the rule Wednesday, but said it would be released Friday. Advocates believe the regulations won’t be much different from the draft versions the administration submitted late last year before U.S. District Judge Dolly M. Gee of the Central District of California, who oversees the Flores settlement.
The new rule is set to take effect 60 days from Friday, although advocates are expected to put up a fight in Gee’s courtroom once again. In order for the regulations to become effective, Gee must find that the new regulations “implement” the Flores agreement.
“The Administration is fulfilling the purpose of the Flores agreement, which is to ensure children in the Government’s custody are treated with dignity, respect, and special concern,” DHS said in a statement.
However, the Flores Counsel — an organization made up of several legal and child-advocacy groups — said it’s confident the judge will “see right through that.”
“The Administration’s final regulations will most likely never be implemented because under the terms of the settlement the government agreed to in 1997, the settlement only terminates when the government issues regulations that are consistent with and implement the terms of the settlement,” said the Center for Human Rights and Constitutional Law, one of the groups challenging the new regulations.
Peter A. Schey, president of the group, said the administration has been “politicizing the detention of children” since it implemented its “zero tolerance” policy in April 2018, which was set to separate children of all ages from their parents while the parents were prosecuted.
President Donald Trump “repeatedly called for the termination of the Flores settlement and the detention and prompt deportation of children regardless of persecution or domestic abuse they may face in their home countries,” Schey said.
In June of last year, Trump ordered then-Attorney General Jeff Sessions to immediately file an emergency motion requesting that the court terminate key provisions of the agreement. The Flores Counsel opposed that motion and a month later Judge Gee denied the government’s request. That’s when the administration appealed the judge’s decision and ultimately withdrew its appeal.
In January, President Trump demanded two things from Congress to end the government shutdown: several billion dollars to build a border wall and legislation to terminate the rights children have under the Flores settlement. Both efforts failed.
In April, while meeting with border patrol agents in Calexico, California, Trump again railed against the settlement: “The Flores decision is a disaster. I have to tell you, Judge Flores, whoever you may be, that decision was a disaster for our country.”
“The ‘Flores’ in the case’s title is not the judge, but a teenage girl named Jenny Lisette Flores, one of the original four plaintiffs when we filed he case in 1985,” Schey said.
The Flores agreement began as a class-action lawsuit filed in 1985 against the federal government over its perceived mistreatment of migrant children in detention facilities — specifically a 15-year-old Salvadoran girl named Jenny Flores. More than a decade later, in 1997, the Flores settlement was born, which set immigration detention standards for unaccompanied migrant children, particularly facility conditions and the timing and terms of the kids’ release.
“We are waiting to read the official regulations and will be challenging them immediately. Our team is ready working on the appeal,” said Lewis Cohen, communications director at the National Center for Youth Law, co-counsel on the Flores case.
The effort to dismantle the Flores agreement is the Trump administration’s latest move to restrict immigration. The new rule would allow families to be detained together, something the current law doesn’t allow for approximately 20 days.
“One of the goals of the administration to deter migration is not allowing children to be released into the general population with a sponsor but instead detain them until they can be deported,” Cohen said. “In order to do that, the government would have to be able to detain families.”
The new rule, McAleenan said, would do just that. Flores has a higher standard of care for minors, so children and their families — anyone other than a biological parent — are separated and are held in different facilities. Many children travel with guardians such as aunts, uncles, grandparents, family friends or siblings.
The facilities where the children end up — like the Homestead detention center — are guided by Flores, which says minors should be released as expeditiously as possible. However, in practice, the length of stay for children is currently at 45 days, has been as high as 90 days and some children have been in detention for as long as three years.
The regulation would end that and would allow the government to house the children with their families as they wait for immigration proceedings, something that can take months or years.
According to the Transactional Records Access Clearinghouse at Syracuse University, which compiles data obtained through continuing court litigation with the Justice Department, the average wait time for an immigration case to be heard is about two years, and wait times in some jurisdictions averaged nearly three years as of June 2019.
“This would lead to the indefinite detention of children with their parents, or without their parents,” said Oregon Sen. Jeff Merkley, who has been a critic of child detention at Homestead. “Imprisoning children, even with their parents, is unacceptable, and is just as traumatic as being detained separately.”