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Trump Administration Moves to Allow Indefinite Detention of Migrant Families. What Happens Next?

The Trump administration on Wednesday announced plans to end a long-standing federal court agreement that could allow the government to detain immigrant families indefinitely.

Known as the Flores settlement, the existing rule requires the federal government to transfer minors, including those detained with their parents, to state-licensed facilities after 20 days in custody. But states don't currently have licensing procedures for centers to detain families, meaning the federal government must release them after 20 days. The administration's new proposal would completely do away with that time limit.

If the rule is implemented, families could spend months or years in detention centers while they await action on their immigration cases.

Immigration rights advocates say the new regulation is part of a larger anti-immigrant strategy.

"The administration's new move to detain children indefinitely is highly problematic and in line with its other white supremacist policies attacking immigrant families," said Azadeh Shahshahani, a human rights attorney and the legal and advocacy director of Project South. Shahshahani urged the courts to take action against the administration's proposed rule, calling it "a blatant disregard of established precedent and fundamental human rights."

In recent months, the Trump administration has taken aggressive actions to restrict immigration, specifically targeting asylum seekers.

Trump's public charge rule announced earlier this month would make it harder for immigrants receiving government assistance like Medicaid and food stamps to obtain a green card. The administration also proposed regulations to make it harder for asylum seekers to claim asylum if they have resided in or traveled through a third country before arriving in the U.S.

Trump immigration officials blame the Flores agreement for allegedly "fueling" the number of immigrant families arriving at the Southern border. The president claimed immigrants see it as one way to be released from U.S. custody. These assertions are unfounded.

Homeland Security Secretary Kevin McAleenan said at a news conference Wednesday that the new rule would "restore integrity to our immigration system and eliminate the major pull factor fueling the crisis."

The new rule is expected to be published in the Federal Register some time this week, and would take effect after 60 days.

However, immigration lawyers say it will likely be challenged before Judge Dolly Gee in the U.S. District Court for the Central District of California. The court oversees the current Flores settlement agreement, which was reissued by Judge Gee last June. Additional legal challenges may be filed.

"We don't believe [the rule is] legal, and we’re hopeful that the courts will invalidate these regulations," said attorney Lee Gelernt, the deputy director of the Immigrants' Rights Project at the American Civil Liberties Union.

Shahshahani, pointing to the deaths of five migrant children in federal custody since September 2018 called the move "particularly disturbing in light of the fact that this administration has shown its utter disregard to the health and safety of migrant children."

A report from the Department of Homeland Security Office of Inspector General last month found that adults and children held in detention facilities did not have access to showers.

Just this week, Customs and Border Protection said it would not vaccinate migrants against the flu, even though three children have died in U.S. custody after contracting the virus.

For these reasons, immigration rights advocates are doubtful that the Department of Homeland Security (DHS) is capable of regulating itself while operating migrant detention facilities.

In addition to the neglect for the physical wellbeing of detained immigrants, advocates have long worried about the psychological effects of long-term detention on children.

If the Trump rule is upheld, Gelernt said children in federal custody, some of whom are just toddlers or babies "could essentially grow up in a detention center. It could cause serious if not irreparable harm to them."

Gelernt added: "The stakes are high."

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