On Wednesday, the Trump administration announced it is seeking to detain immigrant children in federal custody indefinitely. Officials released a long-promised rule that would unilaterally end the Flores settlement agreement, which blocks the government from detaining immigrant children for more than 20 days. The new rule, which the administration announced would take effect in 60 days, will face immediate court challenges.
According to a 2015 federal court ruling updating the 1997 Flores agreement, children arriving with parents at the border cannot be detained for longer than 20 days. That ruling did not require that parents be released as well, which led the Trump administration to begin separating families at the border by the thousands as part of a “zero tolerance” policy last year. Before then, families were generally released together while going through immigration proceedings. After public outcry, President Donald Trump issued an executive order to end the policy but also said that he would seek to keep families detained together until their cases were adjudicated, effectively nullifying the Flores settlement. Last fall, the government put that rule up for a period of public comment, and on Wednesday, the final rule was announced.
As the New York Times reported, under the terms of the original agreement, the government will have seven days to seek the approval of Judge Dolly M. Gee, who decided the original 1997 case. Earlier this summer, Gee rejected a government attempt to argue that the settlement’s demand that children be housed in “safe and sanitary” conditions was vague enough not to require they be given a toothbrush, soap, and a blanket. Last week, the 9th U.S. Circuit Court of Appeals upheld that ruling, issuing an opinion that stated “[a]ssuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep-deprived are without doubt essential to the children’s safety.”
Now the same administration that argued in court these things were inessential says it must be trusted to provide long-term housing to children that keeps them adequately safe. Under the terms of the agreement, family detention centers had to be licensed by states. Under the new rule, the Department of Homeland Security would select a “third-party entity” to approve of conditions for families if a state license could not be procured (which is often the case).
“[This rule] ensures that all children in U.S. government custody are treated with dignity, respect, and special concern for their particular vulnerability,” said acting DHS Secretary Kevin McAleenan.
Reports from the border suggest the children currently being detained are not being kept safe. At least seven children have died in immigration custody in the past year, and CNBC reported on Tuesday that Customs and Border Protection would not be offering the flu vaccine at its short-term facilities despite three children having died in federal custody of the flu or flu-related complications. Prior to these children dying, no children had died in CBP custody for nearly a decade.
Trump administration officials argue that the family detentions are necessary to stop released migrants from skipping out on court dates during immigration proceedings. As the Wall Street Journal noted, “According to immigration-court statistics analyzed by Syracuse University, about six in seven families released from custody do attend their hearings.”
Administration officials said on Tuesday that children at the facilities received “top-notch food” and that this move was being done as an alternative to family separation, according to the New York Times. Last month, the ACLU accused the Trump administration of continuing unlawful family separations despite a court order last year ending them and ordering swift reunifications of families that had been separated. The judge in that case is set to hear arguments from both sides over the next several weeks before issuing a ruling on continued separations.
On the question of the Flores settlement, Gee seems unlikely to side with the government’s attempts to unilaterally end her consent decree, which means that the case is likely headed for a lengthy appeal.