Feds try to circumvent limits on detention of families

WASHINGTON — The Trump administration took the first official step Thursday toward withdrawing from a court agreement limiting the government’s ability to hold minors in immigration jails, a move that could lead to the rapid expansion of detention facilities and more time in custody for children.

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

The maneuver is almost certain to land the administration back in court, while raising the odds that the government eventually could petition the Supreme Court to grant the expanded detention authority lower courts have denied.

U.S. District Judge Dolly Gee, who oversees the Flores agreement, has rejected the government’s requests to extend the amount of time migrant children can be held in immigration jails beyond the limit of 20 days. The administration’s new proposal does not set limits on the amount of time children could be held in detention. Rather, it seeks the authority to hold migrant children and their parents until their cases have been adjudicated, which could take months.

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

“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 comes less than three months after the Trump administration’s short-lived attempt to halt a surge of Central American asylum-seekers by separating children from parents who entered unlawfully. The practice was widely condemned, forcing the administration to reverse course and regroup.

Peter Schey, one of the lead attorneys in the class-action suit that led to the Flores settlement, said plaintiffs were preparing to seek an injunction from Gee blocking the government’s bid to overhaul child detention standards. He criticized the administration’s legal position as a “Trump Catch-22” because the president has publicly advocated for rapid deportations.

The changes sought by the administration would allow U.S. Immigration and Customs Enforcement to expand its family detention facilities. ICE has three “family residential centers,” with a combined capacity of about 3,000 beds.

But those facilities are almost always full, and court limitations on child detention have been a disincentive to build more. As illegal crossings increased this spring, the Trump administration directed the Pentagon to identify sites where new family detention centers could be added with space for up to 12,000 beds but the government has yet to construct new facilities.

The Flores settlement compels the government to hold migrant children in the least-restrictive setting possible, and mandates that those facilities are licensed. But while states typically license child-care facilities, none issue licenses to family detention centers.

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