The maneuver is almost certain to land the administration back in court, while raising the odds that the government eventually could petition the Supreme Court to grant the expanded detention authority lower courts have denied.
U.S. District Judge Dolly M. Gee, who oversees the Flores agreement, has rejected the government’s requests to extend the amount of time migrant children can be held in immigration jails beyond the limit of 20 days. The administration’s new proposal does not set limits on the amount of time children could be held in detention. Rather, it seeks the authority to hold migrant children and their parents until their cases have been adjudicated, a process that could take months.
DHS officials said the change would not undermine the protections mandated by the court agreement, but would instead fully implement them as a set of formal policies to ensure migrant children are treated “with dignity, respect and special concern for their particular vulnerability as minors,” according to a statement.
“Today, legal loopholes significantly hinder the Department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country,” DHS Secretary Kirstjen Nielsen said in a statement. “This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress.”
The proposal comes less than three months after the Trump administration’s short-lived attempt to halt a surge of Central American asylum seekers by separating children from parents who entered unlawfully. The practice was widely condemned, forcing the administration to reverse course and regroup.
Peter Schey, one of the lead attorneys in the class-action lawsuit that led to the Flores settlement, said plaintiffs were preparing to seek an injunction from Gee blocking the government’s bid to overhaul child detention standards. He criticized the administration’s legal position as a “Trump Catch-22,” because the president has publicly advocated for rapid deportations.
“The president is telling [DHS] they must terminate the settlement,” Schey said. “They tried it in court, and now they’re trying it through regulations. But they’re in a bind, because the only way the regulations will be valid is if they’re consistent with the settlement, and if they’re consistent with the settlement then they won’t achieve the changes the president has demanded.”
“It’s an awkward situation,” said Schey, calling it “doomed to failure.”
The changes sought by the administration would allow U.S. Immigration and Customs Enforcement (ICE) to expand its family detention facilities. ICE has three “family residential centers,” with a combined capacity of about 3,000 beds.
But those facilities are almost always full, and court limitations on child detention have been a disincentive to build more. As illegal crossings increased this spring, the Trump administration directed the Pentagon to identify sites where new family detention centers could be added with space for up to 12,000 beds, but the government has yet to construct new facilities.
The Flores settlement compels the government to hold migrant children in the least-restrictive setting possible, and mandates that those facilities are licensed. But while states typically license child-care facilities, none issue licenses to family detention centers.
According to a DHS statement, the government will ensure new detention facilities meet standards, “as evaluated by a third-party entity engaged by ICE.” The announcement does not indicate whom the third party would be.
DHS officials say they need to keep families in custody to ensure they appear in immigration court.
The Trump administration said Thursday’s proposed changes would also adjust the way HHS cares for migrant children who arrive without a parent. The agency oversees a network of about 100 shelters for underage migrants, and in recent months, multiple allegations of mistreatment and sexual abuse have surfaced. HHS also has been sharply criticized for not keeping better track of children after they are released to family members or other approved “sponsors.”
The administration’s attempt to withdraw from the settlement could revive still-simmering anger over the separation of more than 2,600 migrant children from their parents during President Trump’s border crackdown, mostly in the spring. As of last week, nearly 500 children were still in federal custody without their parents.
The proposed regulations would not take effect immediately. Publishing them in the Federal Register triggers a 60-day period for public comments.
The proposal comes weeks after the Trump administration was denied permission to detain children for unlimited periods of time. Gee, the judge who oversees the Flores agreement, in July rebuked the Justice Department’s request, calling it “a cynical attempt, on an ex parte basis, to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”
The Justice Department appealed that ruling Thursday.
Also in July, Gee ordered the appointment of an independent monitor to enhance oversight of child detention standards, citing “persistent problems” and a need to “cut through disputes over what is happening on the ground.”
If Gee enjoins the government’s latest attempt to modify Flores, the administration could appeal to the U.S. Court of Appeals for the 9th Circuit, but that court — regarded as one of the country’s most liberal — could also be a challenging venue for the administration.
The Justice Department, which represents the government in the Flores litigation, declined to comment Thursday.
Immigrant advocates and attorneys acknowledge the government has the authority to create regulations to replace the Flores settlement, but they worry that officials will weaken substantive protections in its quest to deport more migrant families.
While keeping children in ICE’s family detention centers long-term is the most striking provision in the proposed regulations, advocates say the entire 203-page proposal would have a broader effect.
For instance, the Trump administration is also seeking greater flexibility to decide when to give children snacks or whether to transfer them quickly from the austere border facilities to more family-friendly environments, as the Flores settlement requires.
The regulations would also strip unaccompanied minors of special protections under the law — such as the right to seek asylum before a trained asylum officer instead of in the more adversarial immigration courts — if they came to America to join parents who are already here.
Over the past two fiscal years, more than 40 percent of unaccompanied minors were released to their parents, according to HHS.
Advocates for immigrants condemned the proposal Thursday and vowed to fight it from taking effect.
“All of these point to a desire to keep more children in jail longer,” said Omar Jadwat, director of the American Civil Liberties Union’s immigrants’ rights project. “You don’t need to be an expert to know that the effect of putting a kid in jail with or without other family members is serious and could be a lifelong trauma.”
In August, the mother of a Guatemalan toddler filed a claim alleging the little girl died in May as a result of negligent medical care while detained with hundreds of other families in Texas.