By Natasha Bach
September 6, 2018

The Trump administration is seeking changes to the government’s policy for detaining undocumented migrant children.

On Thursday, the Department of Homeland Security and the Department of Health and Human Services issued a proposal that would effectively allow the government to hold minors in detention indefinitely.

The proposed regulations would invalidate the Flores Settlement Agreement, a decree that has stipulated the treatment of detained underage migrants since 1997. As it stands, children can only be detained for up to 20 days.

Nevertheless, the administration argued that the new regulations would “satisfy the basic purpose” of the settlement, ensuring that the children are “treated with dignity, respect, and special concern for their particular vulnerability as minors.”

Most significantly, DHS and HHS propose a change to the licensing of detention centers, moving the authority from a state-based system to a federal one. The Flores settlement mandates that children can only be held in licensed facilities, but the vast majority of those licensed by states are limited to child-care, not entire families. The agencies therefore contend that they can address the issue of family separations by creating centers that hold undocumented children with their parents.

“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,” said DHS Secretary Kirstjen Nielsen 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.”

While the proposed regulations could serve to mitigate concerns around family separations, they would nevertheless allow the administration to hold children at these family detention centers “for the pendency of immigration proceedings.” In other words, children, while not separated from their parents, could remain in detention centers so long as their immigration case remains open.

But U.S. District Court Judge Dolly Gee, who oversees the settlement, has already rejected earlier attempts to extend the current limit, including a request from the administration as recently as last week to allow the detention of children for unspecified periods. This new proposal will also likely land the administration back in court.

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