On Aug. 23, the Trump administration released a regulation that would allow it to detain migrant children indefinitely. The new rule, which is not yet in effect, would end the 1997 consent decree known as the Flores Settlement Agreement, which put in place protections for migrant children who arrive at the border. The Flores agreement limits how long children can be detained and requires that they be placed in the least restrictive setting possible.
Many Americans first heard about the Flores agreement last summer, when the Trump administration began separating families at the border. The administration claimed that it had to separate children from their guardians because the Flores agreement would not let the government detain the families together long enough to resolve the parents’ immigration cases, which often takes months or years. Previous administrations usually released families until their cases were heard.
Here are four things to know about the new rule.
1. Long-term detention has lasting mental health effects on children
Acting homeland security secretary Kevin McAleenan said that the rule sets guidelines for the care of detained families in “campus-like settings” where all needs are ostensibly met. These “family residential centers,” he said, will have “appropriate” facilities for “medical, educational, recreational, dining” and housing needs. However, there is good reason to doubt that detention conditions will be adequate, given recent reports of the lack of even basic necessities at some facilities.
In the week I spent earlier this year in the family detention center in Dilley, Tex., law students and I observed that the environment created continuing trauma for the children and families. One child I met cried silent tears throughout the legal meeting I held with her mother. A detained teenager was entertaining thoughts of suicide and refusing food.
2. The United States already detains some children for far longer than permitted by Flores
Children are detained more than 20 days when bureaucratic hurdles block their release. For example, in December 2018, the average stay in the children’s detention facility at Tornillo, Tex., was 50 days. Such waits are caused by a Trump-era Department of Homeland Security policy that requires background checks of the relative waiting to take in the child and also of every person in that relative’s home. Cornell Law School faculty members have met children detained in Brownsville, Tex., for up to 10 months.
3. The rule will not deter desperate families
McAleenan claimed that the rule will discourage adults from bringing children to the United States, whether those adults are the children’s parents, other relatives or smugglers. But such deterrence policies rarely work, researchers find. Pushed out of dangerous home countries by poverty, crime or other threats, migrants simply look for other ways into the United States.
For example, the Trump administration’s new Migrant Protection Protocols require migrants who present themselves at an official border point of entry to wait in Mexico for their asylum hearing. Knowing this, many detained women I spoke to in Dilley had avoided the point of entry. Instead, they crossed the Rio Grande at night on inflatable rafts, clutching their toddlers. They asked for asylum when Border Patrol apprehended them.
4. The rule faces several potential legal challenges
The administration published the rule in the Federal Register on Friday, Aug. 23. It could take effect in 60 days, but only if it’s approved by federal judge Dolly M. Gee, who oversees the Flores agreement. Once the rule is published, the government has seven days to file a brief to obtain her approval. Last year, she denied the government permission to modify Flores to permit indefinite child detention. If she denies this request as well, the government will probably appeal.
Even if Gee grants the government’s request, the rule will probably be delayed by legal challenges from advocacy groups such as the Center for Human Rights and Constitutional Law, which originally filed the Flores case and continues to litigate it today. Advocates are likely to argue that the new rule violates Flores, putting the government in contempt of the court’s order.
If the rule does go into effect, advocates will probably bring a new class-action suit under some of the principles of the original 1985 Flores complaint, arguing that indefinite detention is a violation of due process and equal protection under the Constitution. They may also argue that the policy violates certain provisions of the Immigration and Nationality Act. Further, advocates could turn to international human rights law, arguing that the rule violates the right to personal liberty and security enshrined in the International Covenant on Civil and Political Rights.
Lawyers for detained children may also file individual writs of habeas corpus, a legal term for petitions for release alleging that the detention is an unconstitutional deprivation of freedom. Immigration attorneys have increasingly been filing habeas corpus petitions for immigrants in prolonged detention — at times successfully obtaining their clients’ release.
Beyond legal action, the indefinite child detention policy may again spark public outrage, as happened last summer over family separation. Collective public action could also prompt policy change.
Jaclyn Kelley-Widmer is an assistant clinical professor of law at Cornell Law School, where she teaches lawyering and directs the 1L Immigration Law and Advocacy Clinic.