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This decision follows the administration's decision this spring to separate families at the border as part of its "zero tolerance" policy, which has allowed more than 2,500 children to be separated from their parents for weeks or weeks. months.
The draft regulation of more than 200 pages would bypass a judicial settlement that, for 20 years, has set standards for the care of children in detention, thus freeing the administration of much wider powers over how children undocumented immigrants are taken care of.
But immigration advocates argue that changes are tantamount to ignoring children's interests, which in their view was the original goal of the settlement.
The administration has long sought to overturn the court agreement, arguing that the way it links the hands of the government is helping to attract undocumented immigrants to the country. By supporting families as long as their immigration file circulates in the system and expelling them more quickly, families will be less likely to try to come to the United States illegally.
The administration has targeted the Flores settlement as one of the main sources of frustration with the immigration system, particularly the obligation to release children who arrive in families within 20 days. After unsuccessfully trying to circumvent the requirement in court, Thursday's decision would eliminate the court's problem.
In a statement, Homeland Security Secretary Kirstjen Nielsen described the settlement as an "attraction factor" that illegally drives immigrants into the United States.
"Today, the legal loopholes significantly hinder the Department's ability to appropriately detain and quickly remove family units that have no legal basis for staying in the country," Nielsen said. "This rule relates to one of the main factors of attraction of illegal immigration and allows the federal government to enforce the immigration laws passed by the Congress."
But critics of the proposal say the changes would put in place requirements to protect children by giving the government the power to set its own standards to meet its needs.
"There's a reason we have Flores in the first place, and that's to protect children." Said Philip Wolgin, director of immigration policy at the Center for American Progress, a group progressive thinking. "Given the number of recent reports on the abuse of children in detention, we need these common sense protections more than ever, and it is difficult to see how the rules would not be challenged in court. or the spirit of the agreement. "
"The last thing we need to do is expose the children to even longer detention in weaker conditions, as proposed by the Trump administration," said Ur Jaddou, a former DHS attorney within from the America's Defense Group Voice & Voice. "The medical and psychological experts all agree that detention, including family detention, has no place in inhuman conditions, especially if viable and viable alternatives exist." This proposal for a regulation is unacceptable and should be challenged. "
What changes
One of the most important changes proposed would be the creation of a federal authorization system for detention centers that can accommodate families. The administration argues that it is the state-based licensing system that poses the problems that would limit family detention.
By allowing the administration to authorize its own facilities, the government says that it would allow them to keep the families in detention for the duration of their trial in the immigration court. These cases may take years to complete, although the administration notes that they move faster when immigrants are still in detention. Being able to keep families in detention would speed up the overall process, they say. According to a DHS official, the current average length of a case for an immigrant in detention is 39 days.
"The proposed rule may lead to an extension of the detention of some minors and their parents or legal guardians in family detention centers beyond 20 days," the rule acknowledges. "ICE is not in a position to estimate how long detention would be extended for certain categories of minors and their carers in the FIUs because of the proposed rule."
The rule states that an "external entity" would ensure that the standards are met by the facilities, but does not specify what that entity would be.
The stated purpose of the rule is to codify the terms of the settlement agreement, which came into force in 1997 and was updated late by the Obama administration. The lengthy regulations would set out in detail how the government is required to achieve the general objective of the regulation, ensuring that all minors held by the government are treated with dignity, respect and particular attention to their particular vulnerability in as minors. "
However, a number of small changes, such as the simple definition of terms, could have major consequences for the way children's cases are currently unfolding. Wolgin noted that some of the regulations appear to remove the requirement for minors in eviction proceedings to have a bail hearing. The regulation also proposes new interpretations of how to approach parole decisions for immigrant children, as well as how to define whether a child is unaccompanied and, therefore, what treatment is accorded under the law.
Likely to end up in court
The rationale for the rule is similar to what the administration has tried before Judge Dolly Gee, who oversees the settlement. Gee rejected these arguments in his courtroom.
Also on Thursday, the administration informed the court that it was considering appealing Gee's decision, a procedural step to pave the way for a possible court battle.
The original regulation has always been designed to be temporary, pending the publication of official regulations. But administrations for two decades have simply followed the regulations and have not published such regulations.
But it is not clear that the plan will work.
The regulation requires that the regulations "not be inconsistent with the terms" of the regulation, which means that the plaintiffs in the original case would be able to bring a legal challenge if they disagreed. That would probably end up before Judge Gee once more.
The publication of the proposal in the Federal Register on Friday will kick off a period of 60 days to allow the public to comment, after which the administration may decide to certify the regulations as final and operational.
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