White House Makes Its Move Against Flores Agreement on Migrant Child Detentions

Cheryl Sanders
August 22, 2019

The Trump administration has announced it is ending a federal court agreement that limits how long migrant families with children can be detained.

But immigrant advocates decried it, and said prolonged detention would traumatise immigrant children.

The 20-day limit on holding children has been in place since 2015, which rose out of a 1997 court-ordered consent decree after a federal class action lawsuit alleged the conditions of detention facilities are unsuitable for children.

Under the current Flores Settlement Agreement, children cannot be held for more than 20 days.

Newly introduced legal changes would be a significant step in addressing the "core aspect" of the immigration crisis at the southern border, Acting Secretary of the Department of Homeland Security Kevin McAleenan said Wednesday.

Peter Schey, a lawyer for the immigrant children in the Flores case and president of the Centre for Human Rights and Constitutional Law, said if the regulations don't match the settlement in that case, "they would be in immediate material breach, if not contempt of court".

The Hill: "Trump officials unveil rule allowing indefinite migrant family detentions" - "Under the new system, immigrant families could be held for the duration of their court proceedings, which officials claim could be resolved within three months".

The latest measure is the administration's most aggressive and legally questionable effort to curtail legal protections for undocumented children since its much-criticized "zero tolerance" policy resulted in the separation of thousands of migrant families. Asylum cases involving detained families move much more quickly than cases for families released, taking months instead of years to resolve, in part because there are none of the delays that result when immigrants set free in the USA fail to show up for a hearing.

Although the rule is set to take effect 60 days after it is published, officials expect the implementation to last longer. Most are released into the United States while their asylum requests wind through the courts - a practice Trump has derided as "catch-and-release".

"In this rule, we are implementing the relevant and substantive portions of the Flores Settlement Agreement".

In a news release, the administration argued that some immigrants had purposely brought children with them in order to take advantage of this rule.

DHS officials said Tuesday that detaining and deporting even a small fraction of the families, perhaps 5% to 10% of apprehensions, could send a powerful message to smugglers and would-be migrants in Central America.

In the past, the Department of Homeland Security has only been able to detain and process families together for 20-days. The administration unveiled a sweeping rule last week that would deny visas and permanent residency to poor migrants, a move that experts say could cut legal immigration in half if it survives court challenges. One facility is limited to adults.

Part of the issue was that children could not be kept in facilities that weren't licensed, and no states license family detention centres.

The administration proposed a similar plan to this one a year ago, but the rules were never enacted as there was an influx of migrants arriving at the border and a shortage of bed space.

Hundreds of families, however, are still being separated if the government deems the parent a risk to the child.

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