The Trump administration took the first official step Thursday toward withdrawing from a court agreement that limits the government’s ability to hold minors in immigration jails, a move advocates say could lead to a rapid expansion of detention facilities and more time in custody for children.
The changes proposed by the Department of Homeland Security and the Department of Health and Human Services would terminate the Flores Settlement Agreement, the federal consent decree that has shaped detention standards for underage migrants since 1997.
The maneuver is almost certain to land the administration back in court, where U.S. District Court Judge Dolly Gee, who oversees the agreement, has rejected attempts to extend the amount of time migrant children can be held with their parents beyond the limit of 20 days. The new rules would lift those restrictions and allow the government to detain migrant children until their cases have been fully adjudicated.
DHS officials say the change would not undermine the protections mandated by the court agreement, but rather fully implement them as a set of formal policies to ensure migrant children “are treated with dignity, respect and special concern for their particular vulnerability as minors.”
“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 DHS Secretary Kirstjen Nielsen, in a statement. “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.”
The proposal sets up a new immigration battle in court, and comes less than three months after the Trump administration’s short-lived attempt to halt an increase in illegal migration by separating children from parents who entered unlawfully. The practice was widely condemned and forced the administration to reverse course and regroup.
The changes proposed by the administration would allow U.S. Immigration and Customs Enforcement (ICE) to expand its family detention facilities in order to keep parents and children together in custody for lengthier periods. ICE currently has three such facilities, which it calls “family residential centers,” with a combined capacity of about 3,000 beds.
But those facilities are almost always full, and the limitations on child detention under the Flores settlement have been a disincentive to build more. The Trump administration has directed the Pentagon to identify sites where new detention centers could be added with space for 12,000 additional beds.
The 1997 Flores Settlement Agreement resulted from a class-action lawsuit over the treatment of migrant children in federal custody, and has required the government to hold migrant children in the least-restrictive setting possible. It also mandates that those facilities are licensed, but while states typically license child-care facilities, none issues licenses to family detention centers.
According to the changes proposed Thursday, the government will ensure new detention facilities meet standards, “as evaluated by a third-party entity engaged by ICE.” The announcement does not indicate who the third party would be.
Homeland Security officials say they need to keep families in custody to ensure they appear in immigration court. But a lengthy backlog of cases means children could be held in detention for months.
The Trump administration said Thursday’s proposed changes would also “formalize” the way Health and Human Services cares for migrant children in its custody. The agency oversees a network of about 100 shelters for underage migrants who arrive without a parent or who have been separated. But in recent months, allegations of mistreatment at several shelters have emerged, and HHS has been sharply criticized for not keeping better track of children after they are released to family members or other approved “sponsors.”
The administration’s attempt to withdraw is likely to trigger new legal challenges and could revive still-simmering anger over the separation of 2,600 migrant children from their parents during Trump’s border crackdown in the spring.
As of last week, more than 500 children were still in federal custody without their parents.
The proposed regulations would not take effect immediately. Publishing them in the Federal Register triggers a 60-day period for public comments. Then, advocates say, the Flores counsel who represents all migrant children in federal custody would have 45 days to challenge those regulations in court.
The proposal comes weeks after the Trump administration failed to obtain permission to detain children for unspecified periods of time from Judge Gee in Los Angeles.
In July, Gee sharply rebuked the Justice Department’s request, calling it “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.”
Advocates say the Trump administration has the authority to create regulations to replace the court agreement, but they worry that officials will ignore the substantive protections in its quest to deport immigrants.
In August, the mother of a Guatemalan toddler filed a claim alleging the little girl died in May as a result of negligent medical care while detained with hundreds of other families in Texas.
Immigrant advocate groups and lawmakers condemned the proposal. Rep. Katherine M. Clark, D-Mass., said she was “disgusted” by the move, coming after international outrage forced the administration to backtrack from its efforts to prosecute parents at the border and stripping them of their children.
“Children and families do not belong in prison. Period,” Clark tweeted.