Officials push for jailing immigrants longer

WASHINGTON — President Donald Trump’s administration took the first official step Thursday toward withdrawing from a court agreement that limits the government’s ability to hold minors in immigration jails.

The changes proposed by the Department of Homeland Security and the Department of Health and Human Services would terminate the Flores Settlement Agreement, the federal consent decree that has shaped detention standards for underage migrants since 1997.

The maneuver is likely to land the administration back in court, where U.S. District Judge Dolly Gee, who oversees the agreement, has rejected attempts to extend time migrant children can be held with their parents beyond the limit of 20 days.

The new rules would lift those restrictions and allow the government to detain children until their cases have been fully adjudicated.

Homeland Security officials say the change would not undermine the protections mandated by the court agreement, but rather fully implement them as a set of formal policies to ensure that the children “are treated with dignity, respect and special concern for their particular vulnerability as minors.”

“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 Kirstjen Nielsen said 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 proposal sets up a new immigration battle in court and comes less than three months after the Trump administration’s short-lived attempt to halt an increase in illegal immigration by separating children from parents who entered unlawfully.

The practice was widely condemned and forced the administration to reverse course and regroup.

The changes proposed by the administration would allow U.S. Immigration and Customs Enforcement to expand its family detention facilities in order to keep parents and children together in custody for lengthier periods. The immigration agency currently has three such facilities, which it calls “family residential centers,” with a combined capacity of about 3,000 beds.

But those facilities are almost always full, and the limitations on child detention under the Flores settlement have been a disincentive to build more. The Trump administration has directed the Pentagon to identify sites where new detention centers could be added with space for 12,000 additional beds.

The Flores Settlement Agreement resulted from a class-action lawsuit over the treatment of migrant children in federal custody, and has required the government to hold migrant children in the least-restrictive setting possible. It also mandates that those facilities are licensed, but while states typically license child-care facilities, none issues licenses to family detention centers.

According to the changes proposed Thursday, the government will ensure new detention facilities meet standards, “as evaluated by a third-party entity engaged by Immigration and Customs Enforcement.” The announcement does not indicate who the third party would be.

Homeland Security officials say they need to keep families in custody to ensure they appear in immigration court.

Such cases can drag on for years, and some people stop showing up to court when it becomes clear their asylum requests are going to be denied.

The Homeland Security Department did not say how long it expects families to be kept locked up. But immigration officials say asylum cases involving detained families move much more quickly, taking months instead of years to resolve, in part because there are none of the delays that result when people set free in the U.S. fail to show up for hearings.

The Trump administration said Thursday’s proposed changes would also “formalize” the way the Health and Human Services Department cares for children in its custody. The agency oversees a network of about 100 shelters for underage migrants who arrive without a parent or who have been separated. But in recent months allegations of mistreatment and sexual abuse at several shelters have emerged, and the department has been sharply criticized for not keeping better track of children after they are released to family members or other approved “sponsors.”

The administration’s attempt to withdraw is likely to trigger new legal challenges and could revive still-simmering anger over the separation of 2,600 migrant children from their parents during Trump’s border crackdown in the spring.

As of last week, more than 500 children were still in federal custody without their parents.

The proposed regulations would not take effect immediately. Publishing them in the Federal Register triggers a 60-day period for public comments. Then, advocates say, the Flores counsel who represents all migrant children in federal custody would have 45 days to challenge those regulations in court.

MOVE RAISES IRE

The proposal comes weeks after the Trump administration failed to obtain permission to detain children for unspecified periods of time from Judge Gee in Los Angeles.

In July, Gee sharply rebuked the Justice Department’s request, calling it “a cynical attempt, on an ex parte basis, to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”

Advocates say the Trump administration has the authority to create regulations to replace the court agreement, but they worry that officials will ignore the substantive protections in its quest to deport migrants.

Immigrant advocate groups and lawmakers condemned the proposal. Rep. Katherine Clark, D-Mass., said she was “disgusted” by the move, coming after international anger forced the administration to backtrack from its efforts to prosecute parents at the border and stripping them of their children.

“Children and families do not belong in prison. Period,” Clark tweeted.

“It is sickening to see the United States government looking for ways to jail more children for longer,” said Omar Jadwat, director of the American Civil Liberty Union’s Immigrants’ Rights Project. “And it’s yet another example of the Trump administration’s hostility toward immigrants resulting in a policy incompatible with the most basic human values.”

“They’re essentially trying to accomplish through regulation what the court has not permitted,” said Peter Schey, an attorney representing immigrant children under the settlement and president of the Center for Human Rights and Constitutional Law.

Schey said he will oppose any effort to end the Flores agreement unless the government proposes acceptable regulations for the safe and humane treatment of youngsters.

“Refugee children should not be made to suffer inhumane treatment and prolonged and unnecessary detention just to satisfy President Trump’s zero-tolerance approach to refugees seeking safety in the United States from the violence and lawlessness spreading throughout Central America,” Schey said.

Rachel Prandini, staff attorney at the Immigrant Legal Resource Center, said the erosion of Flores’ protections would subject children to worsening conditions.

“The Trump administration’s decision to exacerbate the suffering of kids, by imposing the cruel policy of family separation earlier this summer and now with this rule change to vastly expand detention of children, is horrifying,” she said.

MENTAL-HEALTH LAWSUIT

Separately, lawyers are seeking to force the Trump administration to pay for the mental-health treatment of migrant children who they say are suffering lingering emotional effects from being separated from their parents at the border.

The federal class-action lawsuit filed late Wednesday seeks unspecified monetary damages and the creation of a fund to pay for mental-health treatment for children who were taken away from their parents under the administration’s zero-tolerance policy.

Now that many migrant families have been reunited, lawyers say the focus should turn to helping children with the lingering psychological effects of their separation and detention. The attorneys say they believe this is the first case in the country to request damages for all children from Central America and South America who were separated.

“These children suffer from nightmares. They chew their fingernails until they bleed. They fall out of bed at night because they are startled awake from fear,” said Susan Church, one of the lawyers who filed the lawsuit in Worcester, Mass., against Attorney General Jeff Sessions and other administration officials.

“This lawsuit is being brought so we don’t have to see what happens to these children 20 years from now when they have suffered this trauma and it’s never been addressed,” she said.

U.S. Department of Justice officials didn’t immediately respond to an email on Thursday.

Attorneys say many families whose children are

suffering the psychological consequences of their separation must currently rely on lawyers to connect them with free services. Many parents can’t get health insurance or drivers’ licenses and don’t speak English, which makes it difficult for them to find help, Church said.

The lawsuit details the stories of two families from Guatemala that are seeking asylum in the U.S. The parents and children are identified in the complaint only by their initials in order to protect their privacy.

One father, who was separated from his 11-year-old son for more than a month after they arrived in the U.S. in June, told reporters Thursday that he feared he would never see his son again.

The father, identified in the lawsuit as F.C., said his son was hit in the face by another child while he was in detention. Now, his son routinely has nightmares that he’s being chased by the child, he said.

Another parent was separated from her 9-year-old and 17-year-old when they arrived in the U.S. in May, the lawsuit says.

The mother, identified as L.O., fought back tears as she described feeling like her children were being kidnapped when immigration officials took them away. She was told her children were being separated from her to punish her and that they would be given up for adoption, she said.

Her daughter now wakes up in the middle of the night crying and fears her mother will abandon her again, the complaint says.