White House Advances Plan for Indefinite Detention of Migrant Families

August 21, 2019 by Dan McCue
David Enamorado, 32, from Honduras shares a small tent with his family at the Movimiento Juventud shelter in Tijuana. Enamorado is waiting for his asylum request to be processed in the United States. With Enamorado is his wife, Wendy, 24, and their children, Ruth, 8, Caleb David, 5 and Esther, 3. (Nelvin C. Cepeda/San Diego Union-Tribune/TNS)

WASHINGTON – The Trump administration on Wednesday unveiled new regulations that would allow it to indefinitely detain migrant families who cross the southwestern border illegally.

The regulations, which will be published in the Federal Register on Friday, voids a long-standing agreement with a federal court, known as the Flores settlement, that limits how long immigrant children can be kept in detention and specifies the level of care they must receive while being held.

Acting Homeland Security Secretary Kevin McAleenan said the regulations go into effect in 60 days after their publication, barring legal challenges.

President Trump has long complained about the settlement, and specifically, the 20-day limit in places on detaining families in immigration jails, saying it effectively led to the “catch and release” of such families into the United States.

Even with its publication in the Federal Register, the regulation would still need the blessing of a federal judge before it could go into effect. On Wednesday, Homeland Security officials said they have included measures in the regulation that reflect the spirit of the agreement, and court involvement in the matter is no longer needed.

The officials said they are creating a set of higher standards to govern family detention facilities, which will be regularly audited, and the audits made public.  But the rules would allow the government to hold families in detention until their immigration cases are completed, which could be a matter of months or years.

The Flores agreement has been in effect since 1997 but mostly applied to children who came to the country alone.

In 2015, U.S. District Court Judge Dolly Ghee ruled the requirements were applicable to children who crossed the border with families, after the Obama administration tried to detain them together until their cases were completed.

Acting Secretary McAleenan said Wednesday that the flow of migrants illegally entering the country is unprecedented.

“During the first 10 months of this fiscal year, U.S. Customs and Border Protection apprehended or encountered almost 475,000 families, 90% of whom crossed our border unlawfully between ports of entry,” he said. “That’s three times more than any previous full year record.”

He blamed Judge Ghee’s “reinterpretation” of Flores for creating the current crisis.

“This re-interpretation … had the effect of incentivizing illegal entry, adding to the backlog in immigration proceedings and often delaying immigration proceedings for many years.

“The single ruling has substantially caused and has continued to fuel the current family-unit crisis and the unprecedented flow of Central American families and migrants illegally crossing our border.,” he said.

In a statement, House Speaker Nancy Pelosi said by doing away with Flores, “the Administration is seeking to codify child abuse, plain and simple. 

“The indefinite and prolonged detention of children would compound the cruelty and accelerate the heart-breaking humanitarian situation at the border, worsening conditions for children already forced to sleep on concrete floors, eat inedible food and be denied basic sanitation and standards of care,” the Speaker said.  “As the American Academy of Pediatrics has written, ‘No child should be placed in detention…even short periods of detention can cause psychological trauma and long-term mental health risks.’”

House Majority Leader Steny Hoyer, D-Md., also rebuked the White House.

“Not content to separate families and lock up innocent children, the Trump Administration now wants to throw away the key,” he said. “Its decision to undermine the Flores Settlement and allow indefinite detention of children is counter to our democratic values, to basic human rights, and to the moral foundations of this country. 

“These children already face serious trauma, and this decision will only exacerbate an already heartbreaking humanitarian crisis of this President’s own making. House Democrats will continue to oppose this Administration’s inhumane treatment of migrants seeking refuge in our country and urge the President to end it now,” Hoyer said.

Wednesday’s announcement comes a week after the administration moved to broaden the definition of a “public charge” to include immigrants on public assistance, potentially denying green cards to more immigrants.

It also comes in the wake of a federal appeals court ruling that detained children should get adequate food, clean water, soap and toothpaste under the agreement.

A massive influx of Central American families to the U.S.-Mexico border has vastly strained the system, though agreements by Mexico to clamp down on migrants heading north and a new agreement with Guatemala forcing migrants to claim asylum there instead of heading north are expected to reduce the flow.

The federal government currently operates three family detention centers that can hold a total of about 3,000 people; one is being used for single adults, and the other two are at capacity.

Officials hope they would not need extra bed space because the rules would serve as a deterrent.

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