In June, when the Trump administration abandoned its widely condemned and likely unconstitutional policy of separating undocumented families apprehended at the Mexican border, it stated its intent to replace the policy with one that held such families together in indefinite detention. This put it on a collision course with the 1997 Flores court settlement, a binding agreement between the government and immigrant-rights litigants which holds that undocumented children are not to be held in detention for longer than 20 days. A federal judge soon thereafter rejected the administration’s attempt to “modify” the settlement, and now the Department of Health and Human Services and Department of Homeland Security have formally announced their intent to circumvent it.
The administration’s move takes the form of a proposed federal regulation which would “amend” Flores’ rules in a number of ways before formally terminating the agreement. Most prominently, the new regulation would allow Immigrations and Customs Enforcement officials to “use appropriate facilities to detain family units together during their immigration proceedings.” This rule, the proposal makes clear, “may result in extending detention of some minors, and their accompanying parent or legal guardian, in FRCs [Family Residential Centers] beyond 20 days.” Currently, unaccompanied undocumented minors must be released from federal detention after those 20 days into the legal custody of “an adult individual or entity,” a category that includes state-licensed shelters for minors from which they can be released into the custody of a relative or guardian. There’s no such thing as a state-licensed family shelter, though, which means that after 20 days families that include minor children are simply released with instructions to appear later for court hearings.
The Trump administration claims, dubiously, that such a system has created an epidemic of families that skip their hearings and disappear into the U.S. illegally, and its new regulation proposes that the federal government (rather than state governments) be allowed to license and fill humane family shelters that would constitute an appropriate place to hold undocumented children with their parents for longer than 20 days. The proposal argues that such facilities would satisfy Flores in spirt by “ensuring that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors.”
Needless to say, not everyone is likely to agree with this interpretation, and the advocates who represent Flores plaintiffs would be able to challenge it in court if it is implemented after the 60-day public comment period that it’s subject to by law. One such advocacy group, the Center for Human Rights and Constitutional Law, has already criticized the new proposed rules and promised that it will oppose “any effort to terminate the Flores settlement unless and until the Government proposes regulations that provide for the safe and humane treatment of detained children.”