The Trump administration announced on Wednesday that intends to get rid of a decades-old court agreement that limits how long immigrant families can be detained at the border. The new rule will allow the administration to hold immigrant families in detention indefinitely, until their cases are decided, The New York Times reported. The new rule sets an expectation that cases be resolved within two months, according to NPR.
This is the latest in a string of Trump administration immigration polices that seek to stop or discourage people from crossing the southern U.S. border. This new policy comes about a month after the administration released a new asylum rule that severely curtails who is allowed to seek asylum at a U.S.-Mexico port of entry. That rule says asylum seekers must have previously applied for refugee status "while in a third country through which they transited en route to the United States." If they don’t meet that requirement, they aren’t eligible for asylum.
The new regulation unveiled on Wednesday would abolish the 1997 Flores Settlement agreement, which set out conditions for the detention of migrant children. Here are seven key things to know about the new rule.
1. Families would be detained indefinitely under the new rule
Acting Secretary of Homeland Security Kevin McAleenan told reporters in a Wednesday press conference “there is no intent to hold families for a long period of time” under the new rule, but the change wouldn’t put any limitation on how long families can be held. It only stipulates that families can be held in detention pending a final ruling on their case, according to The Daily Beast.
McAleenan said the rule is meant to deter people from exploiting the "catch and release" loophole, which allows immigrants who illegally enter the U.S. to be released while they await the outcome of their court cases, NPR reported.
2. The rule won’t take effect immediately
The administration first proposed the new detention rule last fall, according to The Times. Unlike with the asylum rule, the administration allowed the public to comment on the detention rule after its initial proposal. McAleenan said the rule would be published in the Federal Register this week but that it wouldn’t take effect for another 60 days.
3. It gets rid of bare-bones standards of care for children
The new policy replaces the Flores Settlement agreement, which is named after Jenny Lisette Flores, a teen who fled El Salvador in the 1980s and who was detained by the Immigration and Naturalization Services, according to The Daily Beast. The Flores agreement established a policy that favors releasing minors, including accompanied minors. It also requires that those minors who are not released be transferred out of government custody in a timely manner to a state-licensed facility, and it sets standards for facilities that detain minors, according to the Congressional Research Service.
The Flores agreement also stipulated that minors be discharged from detention "expeditiously," and a federal judge recently interpreted that time limit to be 20 days, according to Roll Call. All of these stipulations will be replaced under the new Trump administration policy, with new standards of care set for facilities and the detention limitation for families abolished.
Even the current 20-day limit on detention for families isn’t always enforced. In 2016, two dozen women inside Pennsylvania’s Berks County Residential Center, which houses detained families, went on a hunger strike because many of them had been detained there for almost a year, according to immigration reporter Tina Vasquez. Bustle has reached out to the Department of Homeland Security and Berks for comment.
4. Just three detention centers are built to house families
The reason for the 20-day time limit was the lack of state licensing for facilities — there aren’t enough facilities that are up to Flores settlement standards to hold families or children for extended periods, USA Today reported. Only three detention centers are built to house families: the Karnes County Residential Center and the South Texas Family Residential Center are in Texas, and the Berks Family Residential Center is in Pennsylvania, according to USA Today. Those facilities together contain about 4,000 beds.
The Trump administration said Wednesday that the new rule would significantly curtail the number of families trying to cross the border illegally, so it wouldn’t be adding any new family facilities because the need for them would be reduced, according to The Times.
5. These family detention centers won’t need a state license under the new rule
The new regulation also eliminates the Flores requirement that families with children be held in state-licensed facilities. The above three facilities are the only family centers that also have state licenses. The administration wrote in the new regulation that the limited state-licensed space creates “operational difficulties," because it forces DHS to release families after a short time, Roll Call reported. According to DHS officials, there aren’t any states that license facilities that detain families, according to USA Today.
Under the new regulation, the three centers would have to meet standards set by the organization that oversees them, Immigration and Customs Enforcement, according to The Times. The rule says third parties could inspect the family detention centers to ensure that they’re up to the standards set by ICE, according to Roll Call.
Detention facilities, including Berks and the South Texas facility, have faced criticism in the past for not meeting current standards for care. In 2016, toddler Mariee Juárez was held at the South Texas facility in Dilley with her mother Yazmin after the two entered the U.S. in March to seek asylum, NPR reported. They were held at Dilley, and six weeks after they were released, Mariee died of a respiratory infection that her mother says began while they were at Dilley. R. Stanton Jones, a lawyer representing Yazmin Juárez in a wrongful death lawsuit against the government said in August 2018, "The conditions at Dilley were unsanitary, unsafe and inappropriate for any small child."
In total, six children have died in immigration custody in the last eight months, according to The Daily Beast.
6. Detention has serious health impacts on children
Medical professionals have found that detention can have serious impacts on children. The American Academy of Pediatrics released a policy statement in 2017 that said, "The Department of Homeland Security facilities do not meet the basic standards for the care of children in residential settings."
The academy went on to call for "limited exposure of any child to current Department of Homeland Security facilities (ie, Customs and Border Protection and Immigration and Customs Enforcement facilities)… ."
A June 2019 study of 425 detained children found that 32% of them had “abnormal” emotional problems based on their mothers’ reports of their behavior. Overall, they had higher rates of PTSD and emotional and behavior difficulties than children in the general U.S. population.
Additionally, a Customs and Border Protection spokeswoman said in a statement on Tuesday that "due to the short-term nature of CBP holding and the complexities of operating vaccination programs," the Trump administration and CBP officials won’t be vaccinating detained immigrant families this year. Medical professionals had called for vaccinations and other efforts after three children died of the flu at detention facilities over the last year, according to CNBC.
The administration acknowledged in its new rule that detention will have “negative impacts” on children, but it said the Flores agreement needs to be modified so that the administration won’t have to separate families, Roll Call reported.
7. Advocates plan to challenge the rule in court
When announcing the new rule, McAleenan told reporters that the administration expects legal challenges. Madhuri Grewal, policy counsel for the American Civil Liberties Union, released a strong statement against the new rule, according to The Daily Beast:
Per terms set by the Flores agreement, the original judge on the case, Judge Dolly M. Gee of United States District Court for the Central District of California, has to approve the regulation, according to The Times. Since 1997, Gee has upheld the Flores agreement in a number of lawsuits against the U.S. government. In 2017, she found that the government violated the agreement by not providing "safe and sanitary conditions" for detained minors, who were reportedly being held in cold and over-crowded cells without food, water, or basic hygiene, according to NPR. And in 2015, she ruled that the Obama administration violated the agreement by detaining children and their mothers who had crossed the border illegally.
Though the rule is set to take effect in 60 days, McAleenan noted in his Wednesday statement that it could be even longer given the challenges in court.
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