The plan would stop child separation but allow undocumented kids to be detained indefinitely with their families while their cases are pending.
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, would end a 20-day limit on detaining children and families. The deadline grew out of a 1997 settlement of a class-action lawsuit, and the administration says it led to a boom in adults bringing 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.”
Trump told reporters at the White House that as migrants realize that the southern border is tightening as more wall is built, fewer will attempt to enter the country illegally. Trump described himself as concerned about migrant children, but said Congress should close loopholes in asylum law.
“We’re being very strong on the border,” Trump said. “Very much I have the children on my mind. It bothers me very greatly. People make this horrible 2000-mile journey. One of the things that will happen, when they realize the border is closing, the wall is being built, we are building tremendous miles of wall right now, it all comes together like a beautiful puzzle.”
The effort to remove the cap on family detentions would keep families together, albeit in custody, rather than separating them 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.
President Donald Trump voiced optimism on legislation to provide billions in humanitarian aid to stem the immigration crisis at the southern border. However, he blamed Democrats, saying they need to back changing asylum laws. (June 26)
The move in the longstanding lawsuit settlement comes in a year when the conditions at DHS detention facilities have been widely criticized.
“What this will do is substantially increase our ability to end the catch and release challenges that have fueled this crisis,” Acting Secretary of Homeland Security Kevin McAleenan said. “No child should be a pawn in a scheme to manipulate our immigration system.”
McAleenan said Immigration and Customs Enforcement’s three current family detention centers have campus-like settings and are fundamentally different than facilities for individuals. In Pennsylvania, the facility has suites for each family and separate wings for classroom learning and medical treatment.
“These standards are high,” McAleenan said.
McAleenan said the goal of the proposal is to have fair and expeditious immigration proceedings. The average case for detained migrants was resolved in 50 days in 2014 and 2015, before the Flores settlement was expanded to cover families, he said.
“There is no intent to hold families for a long period of time,” McAleenan said.
The chairman of the House Homeland Security Committee, Rep. Bennie Thompson, D-Miss., called the proposal a new low in the administration’s treatment of migrant children and families.
“This regulation will allow the administration to dramatically expand family detention and indefinitely lock up children,” Thompson said. “When children have repeatedly died in our care for ailments as simple as the flu, keeping them in indefinite detention defies logic and will lead to deadly consequences. The courts must immediately stop this illegal action.”
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 three family centers have about 3,000 beds. The number of migrant families being detained in those facilities represents a small fraction of the approximately 55,600 immigrants being held in detention in August, according to the Migration Policy Institute.
What’s more, the government until recently had left many of the beds at those facilities unused for families claiming it did not have the capacity to transport families from the border to the detention centers.
The rule change sought by the Trump administration is intended to give the government more leeway to indefinitely detain children with their parents. But “the reality is that ICE has very limited capacity for family detention, and so would rapidly need to stand up that capacity or otherwise not detain children for lengthy periods of time,” said Michelle Mittelstadt, a spokeswoman at the institute.
But McAleenan said the number of detained families isn’t expected to rise significantly under the proposal because adults would no longer have an incentive to bring children on the dangerous journey.
“We anticipate a similar reaction when migrants understand that a child is no longer that free pass or a passport to the U.S. for migration,” McAleenan said.
The regulatory proposal, which is scheduled 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 administration’s 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 2013, federal authorities apprehended 14,855 family units attempted to enter to country illegally, compared to 432,838 so far this year, according to figures from Homeland Security. 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.
Contributing: Alan Gomez and Daniel Gonzalez.
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