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By Laura Tucker, Staff writer; Image: Overcrowding of families at Texas Border Patrol station (Image source: Public domain)
The Trump administration has been pushing back against migrants crossing the border both legally and illegally, but on Wednesday they unveiled a new regulation that will keep detained undocumented migrants indefinitely.
This regulation would replace a 1997 court agreement, known as the Flores settlement, that set a limit on how long migrant children could remain in custody and the standard of care they would receive.
The Department of Homeland Security has been pressed by the White House for more than a year to replace the Flores settlement. They insist it's a key element to limiting immigration at the United States-Mexico border, but it will need the approval of a federal judge before it can be put into play,
It's expected to face court challenges as well, as the administration's other new legislation and orders have. At this time it's scheduled to take effect 60 days after it's published in the Federal Register this week.
The proposed regulation would set new standards for conditions in detention centers and eliminate the 20-day limit that was previously set for the time detained families would be kept. Trump has referred to this in the past as "catch and release."
"This rule allows the federal government to enforce immigration laws as passed by Congress," said Acting Homeland Security Secretary Kevin McAleenan. He noted it was a "critical rule" that would maintain the "integrity of the immigration system."
The administration would be allowed, under the new regulation, to send families who are caught crossing the border illegally to a family residential center where they would be held as long as it takes for their cases to be decided in court, with officials saying it could take three months or longer.
In 2015 the 20-day limit was placed on the time families could be held after a federal class-action lawsuit claimed immigrant children detained for extended periods of time could face physical and emotional harm.
Officials who spoke on the condition of anonymity about the new regulation on Tuesday said the families would be detained until they were awarded asylum or deported.
They also said the belief is that this will send a message to migrants that bringing children was not a "passport" to going through the system easily. They believe this will significantly reduce the number of families who try to cross the border illegally, meaning more family residential centers won't be needed.
Democrats believe the Flores settlement rules ensure the well-being of detained children, though with these rules in place, there have been disturbing stories and reports of overcrowding and detainees going without necessities, such as showers, food, and bathrooms.
McAleenan told the House Homeland Security Committee a few months back that the Flores settlement had incentivized migrants to travel to the U.S., noting that it built the idea that "if an adult arrives with a child, they have a likelihood of staying in the United States."
The new regulation will also eliminate a requirement that federal detention centers be licensed by states. They would only have to meet the standards set by ICE.
"We don't disagree with detaining children when it's necessary — namely, if they're a flight risk or they're a danger to themselves or others, we agree," said Peter Schey, an attorney who filed the original case that ended with the Flores settlement.
"It's the unnecessary detention of children that this settlement sought to end. So these regulations really reflect a flagrant disregard on the part of President Trump and his administration for the safety and the well-being of children in the care of the federal government."
Under the terms of that original consent decree from 1997, the regulation must be approved by the judge in the original case, Judge Dolly M. Gee of the United States District Court for the Central District of California.
The government has seven days to file a brief in her court asking for her approval. If she denies the regulation, the administration is expected to appeal, a process that could drag on for months or years.
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