Last week the Trump administration announced a new rule that would upend a bar in place since 1997 on authorities from holding migrant children for more than 20 days.
The new rule will allow immigrant children with their parents to be held in detention indefinitely and remove court-imposed time limits.
The proposed regulation by the Department of Homeland Security (DHS) and Health and Human Services (HHS) would end 20 years of judicial oversight and goes into effect in 60 days, allowing Immigration and Customs Enforcement (ICE) to keep children with their mothers in detention facilities indefinitely, while their cases process through immigration courts.
According to DHS officials, the average length of stay for adults with pending court cases is currently 39 days. However, court backlogs tend to drag out the time an immigrant must wait in detention for a court hearing. Until now, children have been released with their parents after 20 days.
The Trump administration has tried to move around the previous rule by separating parents from their children and holding parents in detention while children were placed in the care of HHS.
“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.
In a statement, DHS Secretary Kirstjen Nielsen said that the new rule is necessary to enforce immigration laws and practices.
“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 has argued that the “Flores” agreement, consent decree, has encouraged migrants to travel and bring children along to shield themselves from the fear of lengthy detention, the new rule according to the administration will honor the “Flores” agreement by keeping the children safe.
The 1997 consent decree was formulated after advocates argued that federal detention was damaging both physically and emotionally to children’s health and limited their access to legal counsel. In 2016, the courts extended the decree to apply not only to children who were crossing the border alone but to migrant families.
The controversy began when Attorney General Jeff Sessions installed a zero-tolerance border policy. This policy was made to jail and prosecute every adult who crossed the border without permission or in an unlawful way. Migrant families were consistently separated as adults were placed in detention and children were sent to shelters.
The new proposal announced Thursday is most likely to end up back in court. The public has 60 days to comment on the proposed rules, followed by a 45 day period in which lawyers who negotiated the original settlement can challenge the government’s decision.