Trump detention move on immigrant families promises to draw court challenge

Immigration advocates are vowing to challenge a new effort by the Trump administration that would allow the government to indefinitely detain children in immigration jails with their parents.

The groups say that the administration’s proposal is cold-hearted, would overturn important protections for migrant children, and would not do anything to deter families from trying to illegally cross the southern border.

{mosads}Under the proposed rule issued Thursday by the Departments of Homeland Security and Health and Human Services (HHS), the administration said it plans to issue new regulations that would terminate and replace the Flores agreement, which has governed the detention of migrant children since 1997.

The proposal would allow immigration officials to keep children and their parents detained together for the entire length of their court proceedings, which could take months.

The move is almost certain to land the administration back in court, where a federal judge has already ruled against previous efforts to terminate the Flores agreement.

“The Trump administration’s proposed regulations, purporting to implement the Flores settlement, are nothing more than a prescription for the mass internment of children,” said Leecia Welch, a senior attorney at the National Center for Youth Law.

Welch’s organization is a co-counsel in the Flores case, and a spokesman said the group is likely to challenge the proposal if it is implemented.

Peter Schey, president of the Center for Human Rights and Constitutional Law and a leader of the legal team in the original Flores case, said he was already preparing to challenge the Trump administration plan.

“We will oppose in court any effort to terminate the Flores settlement unless and until the government proposes regulations that provide for the safe and humane treatment of detained children and that are fully consistent with the terms of the settlement we negotiated in 1997,” Schey said in a statement.

The Justice Department, which represents the government in the Flores litigation, declined to comment.

The Flores rules are the result of a settlement in a federal class-action lawsuit over the physical and emotional harm done to children held in jail-like settings for extended periods. The settlement was only meant to be temporary, until it could be written into federal law.

Multiple administrations have challenged the rules and attempted to extend the time migrant children can be detained, but the federal judge overseeing the case has rejected those attempts.

The most recent denial came in July. The Justice Department filed a notice preserving its right to appeal that decision on Thursday, the same day the proposed rule was released.

Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said the proposal is a new approach to try to circumvent the courts.

No administration has attempted to replace the Flores agreement with new regulations, but Jadwat said he expects this effort to fail as well.

“It seems clear that the point of these regulations is to change the status quo to detain more kids for longer, under worse conditions than the settlement allows,” Jadwat said. “It’s clear what they’re trying to do, but I don’t think they’re going to be successful.”

Under the Flores settlement, detaining children for more than 20 days is illegal. The proposed regulations would end that restriction.

Flores has been an obstacle for the Trump administration since it enacted a “zero tolerance” policy on illegal border crossings in April.

Under that policy, first-time adult offenders, including asylum seekers, were remanded to the Department of Justice over a misdemeanor that previous administrations had opted not to prosecute.

Any children brought across the border were separated from their parents, deemed to be “unaccompanied,” and detained by HHS in separate facilities sometimes hundreds of miles from their parents.

The policy resulted in over 2,500 family separations and a political headache for the administration.

Most of those families have been reunited, but as of this week, more than 400 children remain in HHS custody.

The administration was harshly criticized from both Democrats and Republicans over its family separation policy, and the new attempt to withdraw from the settlement could revive that anger, less than two months before the midterm elections.  

The proposed rules also show the Trump administration is proceeding on its own, without the help of Congress.

Administration officials told lawmakers on several occasions that it is Congress’s responsibility to overturn Flores, but House Minority Leader Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles Schumer (D-N.Y.) said that they could not endorse a GOP plan that would keep families in extended detention.

Congressional Democrats this week railed against the proposed changes.

In her weekly press conference Thursday, Pelosi said the policy “has no practical value whatsoever,” and called it “another inhumane assault on families and children.”

Rep. Michelle Lujan Grisham (D-N.M.), chairwoman of the Congressional Hispanic Caucus, in a statement said ending the agreement “will lead to more deaths and risks putting more children and families in danger.”

“The Trump administration’s willingness to make this decision with full knowledge of the atrocious repercussions is negligent and illegal given that it violates federal and state laws enacted to protect children,” she added.

“If people were very disturbed by children being separated from their families, they’re going to be especially disturbed when they see 20,000 families crowded into tents together,” Rep. Ruben Gallego (D-Ariz.) told The Hill.