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Trump Administration Moves to Sidestep Restrictions on Detaining Migrant Children Trump Administration Moves to Sidestep Restrictions on Detaining Migrant Children
(35 minutes later)
Moving to bypass restrictions on the detention of migrant families in federal custody, the Trump administration introduced on Thursday a regulation that would upend a federal court settlement that requires such families to be released after 20 days. Moving to sidestep restrictions on the detention of migrant families in federal custody, the Trump administration introduced on Thursday a regulation that would allow it to hold such families in custody beyond the current limit of 20 days.
The so-called Flores settlement has become a prime target in the administration’s attempt to punish migrants for crossing the border with their children as a means of deterrence. Administration officials have long believed that migrants, primarily from Central America, are bringing children to the United States to shield themselves from consequences of crossing the border without permission. The restriction is part of a court-ordered consent decree that came out of a federal lawsuit over the harm caused by holding migrant children in jail-like facilities. The government has challenged the decree repeatedly, saying that forcing the release of migrant families has encouraged parents to bring children across the Southwest border by the thousands in recent years.
“Today, legal loopholes significantly hinder the department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country,” said the secretary of Homeland Security, Kristjen Nielsen. “This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress.” Until now, the challenges have been unsuccessful, and most migrants who enter the country without travel documents are eventually released and allowed to live freely, sometimes with GPS ankle bracelets, in the United States until their cases are settled in immigration court.
The proposal is likely to end up in court, where the federal district judge overseeing the Flores consent decree, Dolly M. Gee, has rejected repeated attempts to modify its provisions. If it is successful in adopting the proposed rule, the administration will be able to hold migrant families indefinitely in facilities that have been specifically outfitted to house children and adults together. Such facilities are subject to federal standards for family detention facilities, and are evaluated by independent reviewers.
The settlement stems from a 1997 consent decree reached in litigation over a migrant child based on claims that federal detention was damaging, physically and emotionally, to children’s health. In 2016, the courts extended the settlement to apply to migrant families. The new regulation would effectively withdraw the federal government from its responsibilities under the so-called Flores consent decree, signed in 1997 and repeatedly upheld by the federal court, most recently in July. Instead, the administration said, it would put in place policies that would “satisfy the basic purpose” of the agreement, while allowing the government more leeway to crack down on border crossers overall.
The administration has challenged the settlement repeatedly, rhetorically and in court, referring to it as a legal loophole permitting illegal immigration. But as recently as early this year, when Attorney General Jeff Sessions installed a new zero-tolerance border policy that resulted in the jailing of thousands of migrant parents, the administration did not succeed in winning a reprieve from the settlement’s provisions protecting children from lengthy confinement. “Today, legal loopholes significantly hinder the department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country,” said the secretary of Homeland Security, Kristjen Nielsen. “This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress.
Immigrant advocates decried the move for new regulations as a workaround that would put migrant families at risk. The Flores settlement has been an important impediment to the administration’s attempt to punish migrants who cross the border illegally with their children. Administration officials have long believed that border crossers, primarily from Central America, are bringing children to the United States to avoid being held in detention pending the resolution of their deportation or asylum cases.
The regulatory proposal is likely to end up in court, where the federal district judge in Los Angeles who is overseeing the Flores decree, Dolly M. Gee, has rejected repeated attempts to modify its provisions.
The settlement came down originally in 1997, after immigrant advocates successfully argued that federal detention was damaging, physically and emotionally, to children’s health. In 2016, the courts extended the settlement to apply not only to children who were crossing the border alone, but to migrant families.
The issue became newly controversial early this year, when Attorney General Jeff Sessions installed a zero-tolerance border policy that resulted in the jailing of thousands of migrant parents. Because children could not be held in detention with them under the provisions of the Flores decree, the policy resulted in the separation of thousands of children from their detained parents.
The administration at that time tried again to win a reprieve from the settlement’s provisions protecting children from lengthy confinement, but did not succeed. The proposed regulations represent an attempt to achieve via administrative fiat what the government could not win in court, immigrant advocates said.
“The Trump administration has been whittling away at the basic rights of women and children since they came into office. Efforts to weaken or eliminate basic child protection standards by calling them a burden or loopholes, and eliminating their obligations for the basic care of children, is just another example of the administration’s abdication of human rights,” said Michelle Brané, director of the Migrant Rights and Justice program at the Women’s Refugee Commission. “The court has already had to to step in repeatedly to uphold these basic child welfare principles. It is clear that the administration is incapable of holding themselves accountable.”“The Trump administration has been whittling away at the basic rights of women and children since they came into office. Efforts to weaken or eliminate basic child protection standards by calling them a burden or loopholes, and eliminating their obligations for the basic care of children, is just another example of the administration’s abdication of human rights,” said Michelle Brané, director of the Migrant Rights and Justice program at the Women’s Refugee Commission. “The court has already had to to step in repeatedly to uphold these basic child welfare principles. It is clear that the administration is incapable of holding themselves accountable.”
The proposed rule, now under review through the departments of Homeland Security and Health and Human Services, would enshrine into regulation the relevant terms of the Flores settlement and terminate the long-running litigation. It would “satisfy the basic purpose” of the settlement agreement by ensuring that all migrant children in government custody “are treated with dignity, respect and special concern for their particular vulnerability as minors,” the administration said in its announcement. In place of the current settlement, the administration said in its announcement that it would create policy that ensures that all migrant children in government custody “are treated with dignity, respect and special concern for their particular vulnerability as minors.”
The new regulatory structure would allow Immigration and Customs Enforcement to hold families with children in licensed facilities or those that meet ICE’s family residential standards, as evaluated by independent reviewers engaged by ICE.
The public has 60 days to comment on the proposed rules, followed by a 45-day period in which lawyers who negotiated the original settlement can challenge the government’s move in court.The public has 60 days to comment on the proposed rules, followed by a 45-day period in which lawyers who negotiated the original settlement can challenge the government’s move in court.