The 96-page working draft is dated April 20 and comes as President Trump and his top immigration officials are instituting policies that could dramatically increase the separation of parents and children taken into custody at the border.
On Monday, Attorney General Jeff Sessions announced that the Justice Department will pursue criminal charges against all foreign nationals caught crossing the border illegally — an effort to clamp down on illegal immigration that would send parents into criminal custody and children to federally funded shelters overseen by the U.S. Department of Health and Human Services.
The regulations being drafted by the Department of Homeland Security, in partnership with the Justice Department, would provide a clear set of rules for how detained children should be treated, effectively replacing a 1997 consent decree that — along with two more recent federal laws — guides those decisions.
But immigrant advocates say the regulations include changes that could erode several important child-welfare protections.
“They want more power to punish children and their families for seeking safety in the U.S.,” said Diane Eikenberry, associate director of policy for the National Immigrant Justice Center, which advocates for immigrants.
Her organization and others say federal officials should not detain families that are seeking refuge, noting that many who cross the border are Central Americans escaping countries ravaged by gangs and some of the world’s highest homicide rates.
Homeland Security officials declined to comment on the draft regulations, which are in the preliminary stages and must undergo several steps before they take effect, including publication in the Federal Register and a period for public comment.
Under the federal consent decree, known as the Flores Settlement Agreement, the government has up to five days to transfer children detained in a Homeland Security facility to a family residential facility, where they would stay with their parents.
The Trump administration would replace the five-day transfer deadline with the more ambiguous standard of “as expeditiously as possible.”
The proposal also attempts to address a restriction on how long migrant children and their parents can be held at the family residential facilities. Judges have ruled that their stays must be limited to 20 days or less, in part because the centers are not state-licensed.
The proposed regulations would allow federal licensing of such facilities, which could open the door for longer stays. The draft says the administration currently holds families for an average of 14 days and is examining cost estimates that would expand that to an average of 45 days.
The consent decree requires the U.S. government to provide children detained at Homeland Security facilities with snacks and regular meals. In the proposed regulations, the Trump administration seeks authority to delay snacks and other provisions in an emergency, such as a hurricane. But advocates say the language in the proposal would give the government wide latitude to define what constitutes an emergency, potentially allowing officials to delay provisions for other reasons.
The proposed regulations make clear that children who are separated from their parents after being taken into custody would be declared “unaccompanied minors,” setting them on a different path from their parents through the immigration system.
But the proposal also would change procedures for minors who cross the border without adult relatives.
Federal law gives those unaccompanied minors special protections. They can seek asylum before a trained asylum officer instead of in the more adversarial immigration courts, where they face cross-examination by a federal prosecutor and are not entitled to public defenders. They are also entitled to a second review of their cases in the immigration courts if they do not prevail in the first round.
The Trump administration has argued that minors who cross the border alone but have parents or guardians already in the United States should not be considered “unaccompanied” and should not get those special protections. About 90 percent of unaccompanied minors have been released to a parent or close relative, according to HHS, and would probably fit into this category.
Under the proposed regulations, an immigration judge would “take the lead” in determining whether a child is truly an unaccompanied minor before the case is sent to an asylum officer. An immigration prosecutor could argue against that designation in court.
If the judge rules that a minor is not unaccompanied, then the case would remain in the immigration courts.
HHS, which has been criticized for attempting to prevent minors from having abortions, is separately writing its own regulations related to the care of unaccompanied minors in the facilities it operates, according to the DHS draft.