Proposed Rule Would Allow Joint Detention of Migrant Parents, Children

DHS proposed a rule that would establish standards of care for detaining all illegal alien minors. It includes a provision that would allow for the joint detention of illegal-alien parents and children until they win their asylum case or are deported. The rule would set aside a 2015 court order related to the “Flores settlement” that requires the release of illegal-alien minors and their parents after only 20 days.

Homeland Security Secretary Kirstjen Nielsen said, “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. 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… “would satisfy the basic purpose of the in ensuring that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors.”

In an effort to resolve the 1997 Flores v. Reno case, the Flores Settlement established protocols for how the federal government deals with minors who illegally crossed the border. It requires the government to detain unaccompanied minors in “least restrictive” settings, and to release them to an appropriate adult “without unnecessary delay.” In 2015, the judge who oversaw the settlement’s implementation from the start, District Judge Dolly M. Gee, clarified that minors and their parents had to be released and limited the time that any minor could be held to 20 days.

A few months ago, the Justice Department filed a motion in Judge Gee’s court to change the settlement. The motion asked Gee to allow for families to be detained together indefinitely, and to terminate the requirement that children be held in facilities licensed as state-approved day care centers. Gee rejected the request, which led to Administration to resolve the issue via a rule making.

The proposed rule, which was issued along with Health and Human Services Secretary Alex Azar, continues most current protections for minors – e.g., unaccompanied alien children must still be released to sponsors as quickly as possible – but provides for the indefinite detention of illegal-alien parents and their children. It also terminates the Flores settlement 45 days after the rule is finalized.

The Washington Times notes, “Once finalized, the proposal would also end some of the intrusive court oversight of the treatment of children, and return decision-making to the administration, which for years has had its hands tied by judges’ orders.”

Read more in The Washington Times.