MIAMI -- President Donald Trump's administration unveiled a new rule Wednesday that would allow the government to detain migrant 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 migrant children be released from custody 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 migrant 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 "The decades-old Flores agreement is outdated and fails to account for the massive shift in illegal immigration to families and minors from Central America."
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The number of families detained at the southern border has skyrocketed in recent years -- from 14,855 in fiscal 2013 to 432,838 so far this fiscal year, the Homeland Security Department said.
At a news conference Wednesday, Kevin McAleenan, acting secretary of the Homeland Security Department, said smugglers abuse the Flores settlement by selling trips across the border to migrant 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, adding that the government's hope is that the rule will deter migrants from illegally 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."
Enacting the regulation would send a powerful message that bringing children to the United States was not "a passport" to being released from detention, McAleenan said, reducing the number of families crossing illegally into the United States.
McAleenan said families would be detained until they were either released after being awarded asylum or deported to their home countries. Some families might be awarded parole to leave the facilities while the courts decide their fate, he said.
The administration proposed the rule last fall, allowing the public to comment on the potential regulation. It is scheduled to be published Friday in the Federal Register and would take effect 60 days later, though administration officials concede that the expected court challenge will probably delay it.
If the new rule goes into effect, the administration would be free to send families who are caught crossing the border to a family residential center to be held for as long as it takes for their immigration cases to be decided. Officials said family cases could be resolved within two or three months, though many could drag on much longer.
The government operates three family detention centers that can hold about 3,000 people. One is being used for single adults, and the other two are at capacity.
McAleenan said he didn't expect to need more bed space because, together with other efforts to restrict the flow of migrants, he expects fewer people to be coming.
In the U.S., immigrant advocates and Democrats decried the new regulations, saying prolonged detention would traumatize the children.
"The administration is seeking to codify child abuse, plain and simple," House Speaker Nancy Pelosi, D-Calif., said in a statement.
The Mexican government expressed concern over the prospect of prolonged detention of migrant children in the U.S. In a statement from the Foreign Relations Department, Mexico said it would monitor conditions at U.S. detention centers and continue to offer consular services to any Mexican families that may be held under the new conditions. It also said that it would keep an eye on possible court challenges and that "the appropriate legal alternatives will be evaluated."
UP TO JUDGE
In order for the regulations to become effective, U.S. District Judge Dolly Gee of the Central District of California, who oversees the Flores settlement, 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," Homeland Security 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 Schey, president of the group, said the administration has been "politicizing the detention of children" since April 2018, when it implemented its zero-tolerance policy, which was set to separate children of all ages from their parents while the parents were prosecuted.
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 a June 20, 2018, order, Trump ended the child 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."
In January, 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, Calif., 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 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 children's release.
"We are waiting to read the official regulations and will be challenging them immediately," said Lewis Cohen, communications director at the National Center for Youth Law, co-counsel on the Flores case.
"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 are guided by Flores, which says minors should be released as expeditiously as possible. The length of stay for children is currently at 45 days and has been as high as 90 days.
McAleenan said the new regulation would ensure that high standards for family detention centers would be maintained.
Information for this article was contributed by Monique O. Madan of the Miami Herald; by Maria Sacchetti of The Washington Post; by Michael D. Shear and Zolan Kanno-Youngs of The New York Times; and by Colleen Long, Amy Taxin, Astrid Galvan and Jill Colvin of The Associated Press.
A Section on 08/22/2019