Migrant Families Would Face Indefinite Detention Under New Trump Rule

By Michael D. Shear & Zolan Kanno-Youngs, The New York Times

Teenagers at a shelter for unaccompanied children in February in Homestead, Fla.CreditWilfredo Lee/Associated Press

Teenagers at a shelter for unaccompanied children in February in Homestead, Fla.CreditWilfredo Lee/Associated Press

The Trump administration unveiled a regulation on Wednesday that would allow it to detain indefinitely migrant families who cross the border illegally, replacing a decades-old court agreement that imposed a limit on how long the government could hold migrant children in custody and specified the level of care they must receive.

The White House has for more than a year pressed the Department of Homeland Security to replace the agreement, known as the Flores settlement, a shift that the administration says is crucial to halt immigration across the southwestern border.

The new regulation, which requires approval from a federal judge before it can go into effect and was expected to be immediately challenged in court, would establish standards for conditions in detention centers and specifically abolish a 20-day limit on detaining families in immigration jails, a cap that has prompted President Trump to repeatedly complain about the “catch and release” of families from Central America and elsewhere into the United States.

The change will require approval from a federal judge before it can go into effect, and administration officials said they expect it to be immediately challenged in court.

“What this will do is to substantially increase our ability to end the ‘catch and release’ challenges that have fueled this crisis,” Kevin K. McAleenan, the acting secretary of homeland security, said in a news conference on Wednesday. He said the regulation “restores integrity to our immigration system” and would provide high standards for the care of children.

Immigration rights advocates denounced the new regulation, calling it part of an effort by Mr. Trump to reduce immigration by sending a message that the administration is willing to treat families and children poorly.

“This is yet another cruel attack on children, who the Trump administration has targeted again and again with its anti-immigrant policies,” said Madhuri Grewal, the federal immigration policy counsel for the American Civil Liberties Union. “The government should not be jailing kids, and certainly shouldn’t be seeking to put more kids in jail for longer. Congress must not fund this.”

The administration proposed the rule last fall, allowing the public to comment on the potential regulation. It is scheduled to be published Friday in the Federal Register and would take effect 60 days later, though administration officials concede that the expected court challenge will probably delay it.

If the new rule goes into effect, the administration would be free to send families who are caught crossing the border illegally to a family residential center to be held for as long as it takes for their immigration cases to be decided. Officials said families cases could be resolved within two or three months, though many could drag on much longer.

Mr. McAleenan said families would be detained until they were either released after being awarded asylum or deported to their home countries. Some families might be awarded parole to leave the facilities while the courts decide their fate, he said.

Almost 475,000 families have crossed the southwestern border in the last 10 months, Mr. McAleenan said, a number he said was three times the previous record for a full year. He said the number of apprehensions of families crossing illegally was up 469 percent from the previous year.

Enacting the regulation would send a powerful message that bringing children to the United States was not “a passport” to being released from detention, Mr. McAleenan said, reducing the number of families crossing illegally into the United States.

“The new rule will restore the integrity of our immigration system and eliminate a major pull factor fueling the crisis,” he said.

The 20-day limit has been in place since 2015, a legal outgrowth of a 1997 court-ordered consent decree after a federal class-action lawsuit claimed that physical and emotional harm was done to immigrant children held for extended periods in the detention facilities.

Previous administrations tried to change the rules for detaining children in efforts to reduce surges of migrants crossing the border. Mr. Trump’s Department of Homeland Security officials have repeatedly said that limiting the detentions of entire migrant families has driven the surge of Central American families who crossed the border this year.

Withdrawing from the consent decree has also been a personal objective for Stephen Miller, the architect of Mr. Trump’s immigration policy. Delays in finishing the regulation had prompted Mr. Miller to lash out at senior homeland security officials, who were ousted from the department.

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Olivia McDowellComment