The Trump administration on Wednesday unveiled new rules that would allow officials to detain migrant families indefinitely while judges consider whether to grant them asylum in the United States.
The rules, which are certain to draw a legal challenge, would replace a 1997 legal agreement that limits the amount of time US immigration authorities can detain migrant children. That agreement is generally interpreted as meaning families must be released within 20 days.
Administration officials blame the so-called “Flores Settlement Agreement” for a spike in immigration, especially of Central American families, saying it encourages migrants to bring children with them so they can be released into the United S while their court cases are pending.
Families typically have to wait several months for their cases to work their way through immigration court, and the new rule would allow DHS to keep those families at detention facilities.
The settlement had placed limits on how long children could be held in detention, leading the administration to release tens of thousands of families pending the resolution of their cases.
Acting Secretary of Homeland Security Kevin McAleenan, announcing the new rule, said those releases were an incentive for immigrants to travel with children and that the government believes the new detention rule will have a deterrent effect.
McAleenan said the government believes some families apprehended on the border were “fraudulent” based on DNA testing of some migrants in pilot programmes implemented in recent months.
The rule will be published in the Federal Register on Friday and will take effect 60 days from that publication. The implementation deadline could slip, however, depending on the success of the likely court challenges.
Immigrant advocates decried the move and said prolonged detention would traumatise immigrant children.
“The government should not be jailing kids, and certainly shouldn’t be seeking to put more kids in jail for longer,” Madhuri Grewal, policy counsel for the American Civil Liberties Union, said in a statement.
The American Academy of Pediatrics has repeatedly said that detention is not suitable for children, who may suffer numerous negative physical and emotional symptoms. Officials said the families would receive mental health treatment and other services.
Peter Schey, a lawyer for the immigrant children in the Flores case and president of the Center 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.”
“I think all these things are now part of the 2020 campaign,” Schey said.
The Flores agreement has been into effect since 1997 but mostly applied to children who came to the country alone. In 2015, US District Court Judge Dolly Ghee ruled the requirements were applicable to children who crossed the border with families, after the Obama administration built family detention centres and started detaining families until their cases were completed.
Part of the issue was that children could not be kept in facilities that weren’t licensed, and no states license family detention centres. Homeland Security officials say by adopting the standards for education, healthy food and cleanliness used by US Immigration and Customs Enforcement, which detains adult immigrants, they are satisfying requirements in lieu of state licensing requirements.
The government operates three family detention centres that can hold a total of about 3,000 people. One is being used for single adults, and the other two are at capacity.
McAleenan said he didn’t expect to need more bed space because, together with other efforts to restrict the flow of migrants, he expects fewer people coming.
President Donald Trump has made a crackdown on immigration central to his presidency. 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.
On Wednesday, Trump said he was seriously looking at ending the right of citizenship for US-born children of noncitizens and people who immigrated to the US without documents.
The Republican president has previously said he would end “birthright citizenship” through an executive order. Experts have said such a move would run afoul of the US Constitution.
The Constitution’s 14th Amendment, passed after the Civil War to ensure that black Americans had full citizenship rights, granted citizenship to “all persons born or naturalized in the United States.”
It has since routinely been interpreted to grant citizenship to most people born in the US.
Immigration officials have struggled to handle a surge of families and children fleeing violence and poverty in Central America that have at times overwhelmed border officials.
DHS officials say they have apprehended 390,000 family units since last October.
The government currently has only between 2,500 and 3,000 detention beds for family units and said any expansion of detention facilities will meet a high standard of care in “campus-like” settings.
The administration has faced harsh criticism of its temporary border patrol stations, where lawyers and internal government watch-dogs reported hundreds of children and families being held in squalid conditions. McAleenan said the new rule will allow officials to transfer families to more appropriate facilities and would allow families to stay together.
The administration sought to deter migrants last year through a “zero tolerance” policy that separated thousands of children from their parents. But it abandoned the effort following widespread public outrage.
Hundreds of families, however, are still being separated if the government deems the parent a risk to the child. A pending legal challenge by the ACLU claims those ongoing separations are often based on flimsy evidence or minor crimes like traffic violations.
At least six children have died in or after being held in US custody over the last year.