WASHINGTON (CN) – In a move certain to spur legal challenge, the Trump administration announced a new rule Wednesday that will remove limits on how long the government can detain immigrant children, ensuring that families who arrive at the southern border can be held together.
The new rule ends the Flores settlement agreement, which has since 1997 imposed restrictions on how long and under what conditions the United States can hold children in immigration jails.
More recently, court precedent has blocked the government from holding children for longer than 20 days — a limit the new rule would do away with.
Acting Department of Homeland Security Secretary Kevin McAleenan emphasized Wednesday that the administration does not intend to hold families for lengthy periods of time, noting that the average length of stay was less than 50 days during the Obama administration, before a federal judge found the practice violated Flores.
The new rule is set to be published Friday and then take effect in 60 days.
Immigrant rights advocates immediately decried the administration’s rule change, calling it cruel and promising challenges in court.
“This is yet another cruel attack on children, who the Trump administration has targeted again and again with its anti-immigrant policies,” Madhuri Grewal, policy counsel at the American Civil Liberties Union, said in a statement. “The government should not be jailing kids and certainly shouldn’t be seeking to put more kids in jail for longer. Congress must not fund this.”
McAleenan said Wednesday the new rule merely allows the government to hold families together for the entirety of their immigration proceedings. He also predicted it will help combat an “unprecedented surge” of families arriving at and crossing the southern border.
Immigration officials blamed Flores for incentivizing people to arrive at the border with children, which in turn can lead to trafficking. Because Flores purportedly forces the government to release families in its custody before concluding their immigration proceedings, many do not return for later hearings.
McAleenan said the new rule will ensure children will be held with “dignity, respect and special concern” in special facilities that are “fundamentally different” than others used to house those in federal custody that have draw scrutiny for overcrowding and squalid conditions.
“To emphasize again, at the heart of this new rule are two core principles: that families should remain together during immigration proceedings and that conditions for care of children must be appropriate,” McAleenan told reporters Wednesday.
The new rule gets around the 20-day limit by changing the licensing requirements for facilities that house families. Currently, in order for families to be held together they must be transferred to a state-licensed facility, but states generally do not have policies in place for how to license facilities designed to hold families, according to the proposed version of the rule released last year.
Katie Shepherd, the national advocacy counsel for the Immigration Justice Campaign at the American Immigration Council, said the change announced Wednesday allows the federal government to license such facilities itself, effectively eliminating oversight of facility conditions.
“The reason that we want a third party licensing these facilities is to make sure that there’s compliance with basic guidelines and norms that will ensure that children are in safe conditions,” Shepherd said in an interview. “If we have [Immigration and Customs Enforcement] doing its own oversight, we’re going to continue to see more children die in custody, in short.”
At least seven children have died either in federal immigration custody or shortly after being released during the Trump administration.
Shepherd noted the administration’s move ignores that there are alternatives to holding families in federal custody that can be cheaper than detention.
“The government is not required to hold any of these families in detention,” Shepherd said in an interview.
In a statement Wednesday, Speaker of the House Nancy Pelosi called the administration’s policy an attempt to “codify child abuse.”
“This inhumane and utterly unconscionable rule circumvents the conditions set in the Flores settlement and we expect the District Court to swiftly strike it down,” Pelosi, a California Democrat, said in a statement. “Democrats continue to call on this administration to end its assault on families and children and to join us to protect families and preserve America’s heritage as a beacon of hope, freedom and opportunity for all.”