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Trump administration unveils plan to indefinitely detain migrant children

The sweeping plan will allow the government to detain families crossing the U.S.-Mexico border longer than 20 days


Shira Tarlo
August 21, 2019 10:21PM (UTC)

President Donald Trump's administration announced Wednesday that it intends to hold migrant families in detention for the duration of their immigration court proceedings, with no limit on the amount of time migrant children can be held in custody.

The new rule, announced by acting Department of Homeland Security chief Kevin McAleenan, would replace a decades-old court agreement limiting the amount of time the government is allowed to detain a migrant child to 20 days.

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It would get rid of the Flores Settlement Agreement, a change the administration argued is crucial to addressing "dramatic increases in the number of unaccompanied children and family units crossing into the United States."

The new rule requires approval from a federal judge before it can go into effect. It would establish standards for conditions in detention centers and abolish the 20-day limit for holding migrant families in custody, a cap which has frequently prompted Trump to complain about what he calls the "catch and release" of migrants in the U.S.

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.

The rule, which could affect thousands of migrant families, is expected to be published in the Federal Register on Friday and take effect 60 days later, although the measure is expected to face court challenges which could delay or even prevent the rule from going into place.

"This rule allows the federal government to enforce immigration laws as passed by Congress and ensures all children in U.S. government custody are treated with dignity, respect and special concern for their particular vulnerability," McAleenan said in a statement.

He also called the measure "critical" and claimed it would allow the government maintain the "integrity of the immigration system."

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Under the new rule, the administration could send families who are caught crossing the border illegally to be held at a "family residential center" to be held for as long as it takes for their fate to be decided in court. This means families would be detained until they were either released after being granted asylum or they were deported to their home countries. Applying for asylum in the U.S. takes roughly six months.

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.

The new regulation would allow DHS to license family detention centers and aim to override a requirement in the Flores agreement requiring family detention centers to be state-licensed. Many states do not have such procedures, limiting the government's ability to hold families together.

The administration claims the licensing change would allow the lengthy detention of children with their parents — beyond the 20-day limit — and says families would be held in family residential centers.

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Critics have long argued that children face unsanitary conditions at migrant detention centers. Recent reports of overcrowded and harrowing conditions at Border Patrol detention centers have increased their concerns about the residential centers.

The measure announced Wednesday is the latest effort by the Trump administration to overhaul the nation's immigration system.

In recent months, the administration has proposed rules which could make it more difficult for migrants to get green cards, end temporary protected status for refugees from certain countries, limit avenues to declare asylum and curtail due-process for migrants facing deportation.

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Shira Tarlo

Contact Shira Tarlo at shira.tarlo@salon.com. Follow @shiratarlo.

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