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Under New Trump Rule, Migrant Families, Children Face Indefinite Detention

Acting Homeland Security Secretary Kevin McAleenan speaks about upcoming changes to the Flores ruling at a news conference at the Reagan Building in Washington, Wednesday, Aug. 21, 2019. (Andrew Harnik/AP)
Acting Homeland Security Secretary Kevin McAleenan speaks about upcoming changes to the Flores ruling at a news conference at the Reagan Building in Washington, Wednesday, Aug. 21, 2019. (Andrew Harnik/AP)

With Meghna Chakrabarti

The Trump administration moves to end the Flores agreement. They say it’s to keep families together in detention, but now they could be detained indefinitely.


Molly O’Toole, immigration and security reporter for the Los Angeles Times. (@mollymotoole)

Sen. Jeff Merkley, Democratic senator for Oregon since 2009. Author of “America is Better Than This: Trump’s War Against Migrant Families.” (@SenJeffMerkley)

Mike Howell, senior adviser for Executive Branch Relations at The Heritage Foundation. Former Department of Homeland Security oversight counsel. (@MHowellTweets)

From The Reading List

Washington Post: “Trump administration moves to terminate court agreement, hold migrant children and parents longer” — “The Trump administration is moving to formally terminate a federal court settlement restricting how long U.S. officials can detain migrant children with their parents and replace it with a new rule that could expand family detention and dramatically increase the time children spend in custody.

“The Department of Homeland Security and the Department of Health and Human Services will issue a new rule Friday to withdraw from the Flores Settlement Agreement, the federal consent decree that has set basic standards for the detention of migrant children and teens since 1997.

“The new rule would eliminate a 20-day cap for detaining migrant children and create a new licensing regime that would make it easier for federal officials to expand family detention nationwide.

“Although the rule is set to take effect 60 days after it is published, officials expect the implementation to last longer. Advocates have vowed to challenge the rule in court, which will put the change in front of U.S. District Judge Dolly M. Gee, who denied the administration’s request last year to extend family detentions.”

New York Times: “Migrant Families Would Face Indefinite Detention Under New Trump Rule” — “The Trump administration unveiled a regulation on Wednesday that would allow it to detain indefinitely migrant families who cross the border illegally, replacing a decades-old court agreement that imposed a limit on how long the government could hold migrant children in custody and specified the level of care they must receive.

“The White House has for more than a year pressed the Department of Homeland Security to replace the agreement, known as the Flores settlement, a shift that the administration says is crucial to halt immigration across the southwestern border.

“The new regulation , which requires approval from a federal judge before it can go into effect and was expected to be immediately challenged in court, would establish standards for conditions in detention centers and specifically abolish a 20-day limit on detaining families in immigration jails, a cap that has prompted President Trump to repeatedly complain about the ‘catch and release’ of families from Central America and elsewhere into the United States.

“‘This rule allows the federal government to enforce immigration laws as passed by Congress,’ Kevin K. McAleenan, the acting secretary of homeland security, said in a statement. He called it a ‘critical rule’ that would allow the government to detain families and maintain the ‘integrity of the immigration system.’ ”

The Hill: “Trump officials unveil rule allowing indefinite migrant family detentions” — “Under the new system, immigrant families could be held for the duration of their court proceedings, which officials claim could be resolved within three months.

“McAleenan said the new rule takes aim at a 2015 ‘reinterpretation of the Flores Settlement Agreement’ in which a California district court ruled accompanied minors are subject to the same detention limits as unaccompanied minors.

“The 2015 change, McAleenan said, ‘has generally forced the government to release families into the country after just 20 days, incentivizing illegal entry, adding to the growing backlog in immigration proceedings, and often delaying immigration proceedings for many years.’ ”

Excerpt from “America is Better Than This,” by Sen. Jeff Merkley

As I ponder America’s treatment of refugees, I’m reminded of those grainy black-and-white videos and photos of immigrants arriving by the boatload in New York harbor over a century ago. People are lining the ship railings waving or doffing their hats to the Statue of Liberty.

I wonder what those people would think about our government’s current policies toward migrants, and especially toward children. What would they make of child separation? Or of border blockades leaving refugee children and adults stranded in Mexico? Or of prisons designed to hold thousands of migrant children at one time? Or of national leaders characterizing migrants as rapists and murderers or dehumanizing them with words like ‘animals’ and ‘infestations’?

President Trump has taken America to a dark place. A place deeply rooted in racism. A place deeply connected to a political strategy based on dividing America into groups and pitting one group against another.

This is doing great damage to our national soul. And we need to end it. Instead of division, we need to stand together. We need to remember our Pledge of Allegiance, which celebrates “one nation, under God, indivisible.” When political leaders attack any group within our nation–be it African-Americans, or Latino-Americans, or Muslim-Americans, or any other ethnicity or religion–we must reject the hate and bigotry and stand shoulder-to-shoulder with our fellow Americans.

And when it comes to those fleeing persecution and seeking refuge on our shores or borders, we need to treat them as we would want our family members to be treated, with respect and dignity as they apply for asylum. This does not mean that every refugee will meet the legal burden of proof required to win asylum. Far from it. But whether a refugee wins asylum or not, let him or her see a nation that recognizes the inherent dignity and value of all human beings, and treats each individual accordingly.

We must not let America dwell in the dark moral abyss in which we now reside. Martin Luther King said “Darkness cannot drive out darkness; only light can do that.” Let’s have more light. We must relight Lady Liberty’s torch!

We must bring the nation together to restructure our child immigration system from top to bottom. A national commission producing a roadmap would be helpful. Such a commission should set the table for bipartisan deliberations in the House and Senate that can reset the national debate. Or let the House and Senate take this on directly. But let us not fail to deliberate and act.

We need to revamp every aspect of the system that is traumatizing the children fleeing to our country looking for safety: their experiences at the border; the process of applying for asylum; the system of sponsors for children awaiting asylum hearings; the child-prison facilities; and programs in the Northern Triangle.

Starting at the border, the first order of business should be to end metering and the border blockade. It is inhumane to push children back into Mexico and force them to choose between surviving in dangerous cities or crossing the border illegally. CBP officers, instead of blocking access by children, should provide immediate assistance and treat the children with respect. Each migrant child’s first memory of stepping across the border should be of a smile, a warm greeting, a cold bottle of water, and some good snacks.

The hieleras have to go. Every facility should be a comfortable temperature, not cooled to make immigrants freeze through their detention on concrete benches and floors. And every child should get a basic medical evaluation within an hour of cross- ing the border whether at or between ports of entry. If a child has medical warning signs, we need to upgrade medical attention to a clinic or hospital immediately. Never again should a child like Jakelin or Felipe die in our care and custody.

Next, let’s improve and streamline the asylum process. From day one the migrant child should be assigned a case worker and legal representation. The goal should be to get that child into a home with a sponsor expeditiously. Not only is this much better for the child’s mental health, it saves a lot of money.

Immediate assignment of a legal advisor would also have a big impact. Every unaccompanied migrant child has the legal right to a non-adversarial asylum conference, but the process for arranging that conference is complicated, including filing an I-589 asylum application. To make this happen in a reasonable amount of time, a child needs an immigration advocate or lawyer so the conference can authentically consider all the relevant information that bears on the child’s case. We should never again see images of toddlers supposedly “representing themselves” in immigration proceedings.

Children who arrive with their family are not eligible for the asylum conference but instead have their status determined through an asylum hearing for the family conducted by the Department of Justice. Every effort should be made to streamline and expedite this process as well. Families need to be assigned legal representation if they can’t afford it themselves, and the asylum hearing should be scheduled within a modest number of months. Families need enough time to prepare their case, but no one benefits from years of delay.

Currently, there is a backlog of 800,000 immigration hearings. This is absurd. It generates years of delay in the conduct of asylum hearings. It is a solvable problem. We hire more judges. The cost of hiring those judges and support staff is a modest investment in the context of our overall immigration system.

Excerpted from America Is Better Than This by Senator Jeff Merkley. Copyright © 2019 by Jeffrey Merkley and reprinted with permission from Twelve Books. All rights reserved.

Hilary McQuilkin produced this hour for broadcast.

This article was originally published on

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