Just two months after the Trump administration stopped separating immigrant children from their parents at the southern border, the government Thursday announced its next plan for families who enter the US seeking asylum: long-term family detention, which is currently illegal.
Under current law, immigrant children cannot be detained for longer than 20 days. But the government has proposed a new rule that would allow it to hold kids with their parents in lockdown facilities throughout the duration of their immigration proceedings—which typically take months, and can even span years.
Department of Homeland Security Secretary Kirstjen Nielsen said such prolonged family detention was necessary to deter illegal immigration, and to allow “the federal government to enforce immigration laws as passed by Congress.”
“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,” she said in an emailed statement.
The new rule—proposed both by the Department of Homeland Security and the Department of Health and Human Services—would replace the Flores Settlement Agreement, a 1997 court decision that dictates standards for holding minors. Flores prohibits the government from holding youths beyond 20 days in facilities that are locked or are unlicensed as childcare providers. Under the new rule, the federal government could license its family immigrant detention centers as childcare providers—which the agencies said would “satisfy the basic purpose” of Flores “in ensuring that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors.”
Currently, only state agencies can provide such childcare licenses—and although the state of Texas attempted to license its two large family detention centers, a state judge has so far halted the process after advocates claimed the centers did not meet minimum requirements for holding children. The Texas Legislature also voted down a proposal last year that would have lowered standards for these facilities to be licensed.
Even with licenses from the federal government, the centers would remain lockdowns—which is also prohibited under Flores, which the agencies did not address in their proposal.
“ICE may use appropriate facilities to detain family units together during their immigration proceedings, consistent with applicable law,” wrote Nielsen and Alex Azar, Secretary of HHS, in the proposal, which is open for comments for the next 60 days.
They also claimed this would “allow families to remain together during their immigration proceedings,” echoing a Department of Justice spokesman’s claim in July that ending family separation made it “even more imperative that Congress finally act to give federal law enforcement the ability to simultaneously enforce the law and keep families together” by detaining all immigrants at the border.
But Katie Shepherd, former managing attorney of pro bono legal services in the nation’s largest family immigrant detention facility, said this “false equivalency” that the government must detain families together or separate them is incorrect.
“Alternatives to detention are less costly and more humane than any other detention options,” said Shepherd, the national advocacy counsel for the American Immigration Council’s Immigration Justice Campaign. “The bottom line is, detention is not appropriate for asylum seekers and certainly not for children.”
Some legal experts with extensive family detention experience doubt the government’s proposal will successfully move forward, because they say it blatantly violates the law.
To terminate the Flores Settlement, the government would have to implement regulations that fulfill every piece of those standards—and this new rule clearly fails to do so, said Peter Schey, executive director of the Center for Human Rights and Constitutional Law, which successfully sued to stop long-term family immigrant detention under the Obama administration in 2016. The DHS under Barack Obama had begun detaining families for months, as the Trump administration is seeking to do, and Schey used the Flores Settlement—which first applied only to unaccompanied minors—to end the practice. Judge Dolly Gee, the federal judge in California who ruled in favor of Schey, would have to approve new regulations to replace Flores, he explained.
“It’s not going to go very far because it’s not under the terms of the settlement,” Schey said of the proposed rule, which he said overlooked the Flores requirement that minors be released as quickly as possible to a parent, relative, or family friend.
Schey noted that Judge Gee had even appointed an independent monitor this summer to scrutinize DHS’s adherence to Flores. “She thinks they’re out of compliance,” Schey continued. “She’s setting up an entire regime for enforcement of the settlement.”
Denise Gilman, director of the University of Texas’s Immigration Law Clinic, agreed with Schey that litigation would immediately block the new rule, preventing it from significantly changing reality on the ground. She predicted that it would be impossible to federally license the facilities as childcare providers.
“Trying to do away with state licensing would be gutting a central component of the Flores Settlement,” Gilman said. “State entities are much more expert in the needs and interests of children rather than federal officials, who are interested in the immigration cases of the children.”
Still, Texas’s Department of Family and Protective Services has continued its unsuccessful legal battle to license Karnes Residential Facility and South Texas Family Residential Facility (also known as Dilley), the state’s two large lockdowns for families. Gilman said just this week the agency went to court, fighting an ongoing lawsuit by the immigrant advocacy organization Grassroots Leadership.
“These are not childcare facilities. In a number of ways they're much more like juvenile detention centers,” Gilman said of Karnes and Dilley. “Childcare facilities are supposed to be like foster homes—like a house with a living room and the rest, not a secure detention center.”
Government facilities that are currently licensed to care for immigrant children—shelters for unaccompanied minors—are run by HHS’s Office of Refugee Resettlement, not DHS, noted Bob Carey, former director of ORR under the Obama administration.
Carey said he was concerned about extending detention for children, and that the proposed rule left open many questions, such as who in the federal government would license the facilities and what standards they would use.
“Now they are putting the care of children in the hands of an enforcement agency,” Carey said of DHS. “It needs to be examined and regulated. They're not a human services agency.”
Meanwhile, even without this new regulation, the government is already detaining some families past the legal 21-day maximum, said Jennifer Falcon, communications director for Texas’s Refugee and Immigrant Center for Education and Legal Services (RAICES). Dozens of fathers and children who were separated at the border were reunited in July at Karnes—and the government continues to hold them there, she said.
An ICE spokeswoman denied that any families were being held longer than 20 days, and said in an emailed statement that “the Trump Administration is completing an overdue action that no prior administration has successfully completed, which is to terminate the Flores Settlement Agreement through the adoption of implementing regulations rather than continuing to burden the courts with immigration policy. “
But Falcon said over 150 fathers and children remained in Karnes since July, with no word of their release.
“These were dads who signed deportation agreements thinking they were signing reunification agreements so they’re in this state of limbo,” said Falcon, explaining that RAICES attorneys are now fighting for the families to have a chance at applying for asylum.
“There is no reason they need to still be detained. ICE let tons of people out with ankle monitors and this is just because they coerced [these dads] to sign deportation papers,” Falcon continued. “This has been devastating for the children.”
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