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.