The Washington PostDemocracy Dies in Darkness

California leads effort to block Trump move to detain migrant children longer

A female minor rests her head on a bench in the U.S. Border Patrol’s Central Processing Center in McAllen, Tex., on Aug. 12. California and other states are challenging a Trump administration rule that would allow the government to hold children in custody for longer periods of time. (Carolyn Van Houten/The Washington Post)

California Gov. Gavin Newsom called a new Trump administration rule that could lead to expanded family detention and longer periods in custody for migrant children “perverse” and “unconscionable,” announcing Monday that a coalition of 19 states and the District of Columbia is preparing to file a lawsuit to block it from taking effect.

Newsom and the state’s attorney general said officials from coast to coast — all Democrats — plan to file a lawsuit in Los Angeles that aims to prevent the U.S. government from overriding a federal consent decree that has set basic conditions for detaining underage migrants in the United States since 1997. A judge overseeing the decree, known as the Flores Settlement Agreement, issued a ruling in 2015 that limited the amount of time children can be held to 20 days.

The Department of Homeland Security and the Department of Health and Human Services issued a new rule Friday that would lift the 20-day cap and would expand family detention, part of the Trump administration’s efforts to deter migration to the United States amid record surges of Central American families seeking to cross the southern border.

U.S. District Judge Dolly M. Gee must review the rule, which is set to take effect in 60 days. Gee denied the Trump administration’s request to expand the allowable duration for family detention last year. The new lawsuit would join an existing claim that led to the original Flores agreement. Lawyers in that case have said they, too, will challenge the rule soon.

U.S. officials have argued that smugglers are using the Flores settlement and other court rulings to their advantage, enticing adults in Central America to bring children on the dangerous journey to the U.S.-Mexico border because government officials must release most families into the United States to await immigration court hearings. Officials argue that many do not show up for their hearings and that they are rarely deported.

California and other states say the rule cannot take effect because it violates the spirit of the long-standing court agreement, could lead to the prolonged detention of minors, and in turn probably would cause increased trauma for tens of thousands of children and their families.

Newsom said the Trump administration’s claims that the rule change is designed to protect children from smuggling is “laughable and ludicrous,” alleging that it is instead an end-run around Congress, which has declined to expand family detention.

“The policies of this administration are exacerbating the early childhood trauma of young children,” Newsom said.

The governor also said the Trump administration should not be trusted to care for children, as several have died after being taken into custody at the border in recent months.

California Attorney General Xavier Becerra blasted President Trump for trying to hold children in “jail-like conditions.” He said the rule’s new provisions “aren’t just morally reprehensible — as I said, they’re illegal.”

“All children are God’s children,” Becerra said. “They’re America’s children, and America should never treat them otherwise.”

Advocates for migrants say the families are fleeing violence, poverty and other social dysfunction in Central America and should be freed to await court hearings.

Joining California and the District of Columbia in the lawsuit are Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington state.

The Justice Department declined to comment on the announcement.

Homeland Security officials have said they do not intend to hold families indefinitely, and expect to complete their immigration cases within 50 to 60 days. Acting DHS secretary Kevin McAleenan said last week that the new rule would “eliminate the major factor fueling the crisis.”

Officials said expanding family detention led to a marked decrease in apprehensions from approximately 68,000 family members in 2014 to nearly 40,000 the following year.

But the Trump administration has seen a dramatically larger number of family members arriving at the U.S. border; during this fiscal year, from October 2018 to July, more than 432,000 family members have been taken into custody, a record high, according to U.S. Customs and Border Protection.

Becerra and the state of California have filed dozens of lawsuits against the Trump administration, challenging his policies on immigration, the environment and other issues. California recently joined other states in a lawsuit seeking to halt a new “public charge” rule that aims to bar immigrants from getting green cards or visa renewals if they might use Medicaid, food stamps or other government assistance.