On Thursday, the Trump administration announced that it will detain illegal alien minors and parents indefinitely while their asylum applications process through the court system. The change thus upends a policy that had been in place for two decades. Proposed by the departments of Homeland Security and Health and Human Services, the new rule will become effective within 60 days, allowing Immigration and Customs Enforcement (ICE) to keep minors and their mothers detained. Currently, adults stay in detention for an average of 39 days while their cases are pending. Backlogs in the courts can, however, extend the period while they wait for a court hearing.
Previously, minor aliens had been released with their parents after 20 days, according to a settlement reached in Flores v. Reno of 1997. The Trump administration sought earlier this year to modify the previous practice by separating parents from their children and then detaining parents while their children were placed in the care of HHS.
According to ABC, DHS contends that the change effectively terminates the 1997 Flores settlement agreement the held that minors could not be detained for more than 20 days. The new ruling may mean that appeals may go to federal appellate courts or the Supreme Court. The Trump administration has argued that the internal rule change is legal because the alien minors will be held in ICE facilities that have been evaluated by third parties.
"Under this proposed rule, HHS would implement the Flores Settlement Agreement and our duties under the law to protect the safety and dignity of unaccompanied alien children in our custody," said HHS Secretary Alex Azar. According to a DHS statement, the third-party evaluations will "satisfy the basic purpose" of the Flores settlement agreement by keeping the alien minors safe.
DHS Secretary Kirstjen Nielsen stated, "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." Nielsen said, "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 Trump administration argues that the new regulations would “satisfy the basic purpose” of the Flores settlement and ensure that underage illegal aliens in detention are “treated with dignity, respect, and special concern for their particular vulnerability as minors.”
Significantly, DHS and HHS propose a change to the licensing of detention centers that will switch authority from a system based in the states to the federal government. While the Flores settlement mandates that minors may be held only in licensed facilities, the vast majority of state-licensed facilities are for children, not entire families. DHS and HHS argue that the issue of family separation can be addressed by keeping illegal alien children with their parents.
U.S. District Court Judge Dolly Gee, who oversees the Flores settlement, has already rejected earlier attempts by the Trump administration to extend the limit on the length of detention. As recently as last week, the administration asked the court to allow the detention of minors for unspecified periods. This new proposal will also likely land the administration back in court.
In an interview with Spero News, spokesman Ira Mehlman of the Federation of Americans for Immigration Reform said that the Trump administration's initiative is a "reasonable attempt to both enforce immigration laws and keep families together." He added that such an initiative will likely face challenges in court from organizations such as the American Civil Liberties Union and the Mexican American Legal Defense Fund.