Trump administration wants permission to jail immigrant children and families longer

The administration says migrants are abusing "legal loopholes" that protect children, and they want to withdraw from the Flores Agreement.

A U.S. Border Patrol agent checks birth certificates while taking Central American immigrants into custody on January 4, 2017 near McAllen, Texas. CREDIT: John Moore/Getty Images
A U.S. Border Patrol agent checks birth certificates while taking Central American immigrants into custody on January 4, 2017 near McAllen, Texas. CREDIT: John Moore/Getty Images

The Trump administration Thursday filed proposed rules that would allow the government to detain migrant children for long periods of time while their parents face immigration court.

The proposed rules, which will be published in the Federal Register on Friday, would withdraw the government from the 1997 Flores Settlement Agreement that limits how long the Department of Homeland Security (DHS) and Health and Human Services (HHS) can hold migrant children in detention, where children can be detained, and whom the government can release children to.

The administration has accused migrants, when they crossing into the U.S. illegally, of bringing their children in order intentionally to skirt harsh immigrant detention.

“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,” Homeland Security Secretary Kristjen Nielsen told The Washington Post in a statement. “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 proposed rules come two months after the Trump administration separated thousands of children from parents who cross the border illegally in order to criminally prosecute the parents — sparking court challenges, pushback from Republican and Democratic lawmakers, and an executive order by President Donald Trump to reverse his own ill-fated policy.

Under the proposed rules, DHS would only release unaccompanied children to a parent or legal garden, or else transfer them to HHS custody. The new rules also broadens the emergency circumstances under which the government can remove protections for migrant children and families “on a temporary basis.”

Most significantly, the new rules would allow DHS to detain children together with their families in detention centers that are licensed by the federal government rather than by state authorities. Immigration and Customs Enforcement currently has three family detention facilities with a combined 3,500 beds, according to The Washington Post. Those could dramatically expand under the proposed rules.

A third party would evaluate conditions at those facilities, according to the proposed rules, which don’t say who that would be.

“The goal is to provide materially identical assurances about the conditions of such facilities, and thus to implement the underlying purpose of the FSA’s licensing requirement, and in turn to allow families to remain together during their immigration proceedings,” the new rules say.


Lawyers who represent migrant children will almost certainly challenge the proposed rules in court after the 60-day public comment period is over.

Judge Dolly Gee oversees the Flores Settlement and has rejected previous government proposals to modify it, according to The New York Times.

“The last thing we need to do is to expose children to even longer detention under weaker conditions as the Trump administration is proposing,” Ur Jaddou, Director of DHS Watch, said in a statement. “Medical and psychological experts all agree that detention, including family detention, is no place for children, let alone under inhumane conditions, and especially when there are viable and workable alternatives available. This proposed regulation is unacceptable and should be challenged.”