
The Trump administration would have an easier time keeping migrant families locked up together for long periods under a regulation announced Wednesday by Acting Homeland Security Department Secretary Kevin McAleenan.
At a press conference at Customs and Border Protection headquarters, McAleenan called the measure an important step to address a humanitarian crisis at the southwest border and said it would “provide an expeditious immigration result while holding families together.
"The final rule, which will require court approval before it becomes effective, outlines standards for the care of migrant children and families in the custody of federal immigration authorities. It aims to change licensing requirements for family detention centers and remove a 20-day limit on the detention of children set by a judge enforcing the 1997 Flores settlement agreement, according to a senior department official who briefed some D.C.-based reporters on the measure.
The Trump administration contends the new regulation should terminate the court agreement, but the move likely will trigger legal challenges.
President Donald Trump has made border security a major focus of his first term in office, and finalizing the detention rule has been a top priority pushed by White House senior adviser Stephen Miller. The administration argues the rule could discourage migrants from trekking to the southwest border to seek asylum or cross illegally into the U.S.
The number of migrants arrested at the border — a metric used to estimate illegal crossings — soared earlier this year to monthly levels not seen in a decade. Families arriving from Guatemala, Honduras and El Salvador fueled the surge, which has receded in recent months.
The detention regulation is expected a little more than a week after the administration issued its “public charge” rule. That sweeping measure will allow federal immigration authorities to deny green cards to immigrants who receive certain public benefits or are deemed likely to do so — a change critics argue will rework the system to disadvantage poorer families.
The new detention regulation would permit the Homeland Security Department to license family detention centers and aims to supersede a requirement in the Flores agreement that calls for family detention centers to be state-licensed, according to the senior DHS official. States lack those procedures, limiting the government's ability to hold families together.
The administration contends the licensing change would permit the lengthy detention of children with their parents beyond the current 20-day limit. The new regulation does not set an upper limit for how long families could be held in what federal authorities call “family residential centers,” according to the DHS official.
Immigration and Customs Enforcement maintains only 3,326 family detention beds, according to a 2018 Government Accountability Office report. Most of that bed space is located in the South Texas Family Residential Center in Dilley, Texas, which can hold 2,400 people.
The limited bed space combined with the inability to hold children with their parents beyond 20 days means many families encountered at the border have been released into the U.S. pending an appearance in federal immigration court.
Customs and Border Protection Commissioner Mark Morgan ripped lawmakers in July for a failure to pass legislation that enables longer detentions of families and allows Central American children to be swiftly deported.
"I believe that they have failed the American people," Morgan told reporters. “They know what they need to do.”
The Senate Judiciary Chairman Lindsey Graham (R-S.C.) introduced a bill in May that would have extended the time children can be held in custody to 100 days and required migrants to apply for asylum from their home countries or Mexico.
But Democrats opposed the measure, and Graham was forced to change committee rules to move it through the committee earlier this month. Several other Trump-aligned immigration bills have failed to gain traction in recent years.
The new detention push comes a year after thousands of migrant families were separated at the border because of the administration’s “zero tolerance” policy. Under that initiative, migrant parents were prosecuted for illegal entry and sent to adult detention facilities while their children were labeled “unaccompanied” and placed into the care of the Health and Human Services Department.
Democrats criticized “zero tolerance,” which ran from April 2018 to June 2018, and blamed Trump for precipitating a humanitarian crisis at the border. Amid broad public opposition, Trump issued an executive order that effectively reversed the policy.
The executive order called for families to be detained together, but that remained impossible in most cases due to limited detention space and the inability to hold children beyond the 20-day limit mandated in 2015 by Los Angeles-based U.S. District Judge Dolly Gee.
In June 2018, Judge Gee rejected a Justice Department attempt to modify the agreement and said the administration was trying “to light a match” to the consent decree. The Trump administration expects legal challenges to the new regulation, as well.
During a 60-day public comment period that ended in November, a draft version of the measure attracted more than 100,000 comments.
Article originally published on POLITICO Magazine