The Trump administration announced on Wednesday a plan to eliminate a federal court agreement and replace it with a regulation that would allow the government to indefinitely detain migrant children with their parents.
By replacing the agreement, known as the Flores settlement, the government could dramatically expand family detention and increase how long children are held in custody. The government would also have more power to determine the standards of care for children and families in custody.
The Trump administration has prioritized ending the decades-old Flores agreement, which says the government must hold children in the least restrictive setting and release them as quickly as possible, generally after 20 days in detention. A legal team representing migrant children is also allowed to monitor the government’s detention practices under the terms of the settlement.
Homeland security officials told reporters there was no longer a need for court involvement and they plan to adopt regulations that reflect the Flores agreement in the final rule, which is set to be published on Friday. The rule would go into effect 60 days later, if it does not face the expected legal challenges.
Joann Bautista, policy associate at the National Immigrant Justice Center, said: “The new rule announced today is essentially a regression, completely throwing out all the safeguards to keep children safe that have been in place for decades.”
A lawyer for the migrant children in the Flores case, Holly Cooper, said the legal team would file a response to the Trump administration rule after it is formally published. “Because the federal government is publishing a final rule on the heel of multiple findings of violations of the Flores settlement agreement it is incumbent on us to protect those interests,” Cooper said.
As part of the Flores agreement, a federal appeals panel found last week that detained children should get edible food, clean water, soap and toothpaste after the government argued hygiene products did not need to be provided. It was also a team of Flores attorneys who raised the alarm about dire conditions for migrant children at border processing facilities in June.
Cooper, the co-director of the UC Davis immigration law clinic, said she also expected amicus briefs to be filed by pediatricians, nurses and teachers involved with the case.
Donald Trump said the regulation was a “humanitarian necessity” in a statement released by the White House. “To protect these children from abuse, and stop this illegal flow, we must close these loopholes,” Trump said.
California’s attorney general, Xavier Becerra, condemned the Trump administration plan and said the state was prepared to “defend the human rights of children”.
“Children don’t become subhuman because they are migrants. All children are God’s children, our children, and America should never treat them otherwise,” Becerra said in a statement. “Yet, the Trump administration is about to take America down that dark road stripping protections that spare children from the trauma and harm caused by unlawful, cruel and prolonged detention.”
In a call with reporters, officials said they would create a set of higher standards to govern family detention facilities. These facilities would also be regularly audited, said officials, speaking on the condition of anonymity. A key change in the government’s plan would be eliminating a condition of the Flores agreement which bars the government from detaining children and their parents for more than 20 days.
They follow moves last week to broaden the definition of a “public charge” to include immigrants on public assistance, potentially denying green cards to more immigrants. There was also a recent effort to effectively end asylum altogether at the southern border.
At the White House on Wednesday, Trump also said the government is “very seriously” reviewing birthright citizenship, the right to American citizenship for the children of non-citizens born in the US, something his administration threatened to end last year but ultimately did not move on.
It was the latest in a string of stories on Trump’s escalating anti-immigrant agenda. Also on Wednesday, a report by NBC News said the Trump administration is considering an executive order that would allow states and cities to deny entry to refugees who have been approved for resettlement.
NBC News says it has seen a draft of the proposed executive order, which would undermine efforts to resettle refugees and could violate the intent of an existing law that gives the federal government control over refugee policies.
Sam Levin contributed to this report