By Michelle Hackman
WASHINGTON—The Trump administration moved to allow the government to indefinitely detain families crossing the U.S.-Mexico border and supersede a decades-old court settlement that both limits how long migrant children can be held in custody and sets standards for their care.
The new rules are the Republican administration’s latest effort to tighten immigration laws on its own, with Congress long unable to agree on any legal overhaul. Wednesday’s policy change could permit authorities to detain families through the duration of their immigration proceedings, rather than release them or separate children from their detained parents.
Immigration-rights advocates are expected to challenge the rules in federal court, where they have blocked the administration before. A legal challenge would likely keep the policy from taking immediate effect.
Administration officials say the new rules are intended to discourage family members from attempting to cross the border together in the belief that they will gain an advantage in lodging their asylum claims because of the current detention limits for children. “No child should be used as a pawn to scheme our immigration system,” said acting Department of Homeland Security Secretary Kevin McAleenan on Wednesday.
President Trump said he hoped the new rules—along with other immigration policies—would deter migrant families from risking their lives on a perilous journey to the U.S. border. “When they see you can’t get into the United States—or when they see if they do get into the United States, they will be brought back to their country—they won’t come,” Mr. Trump said Wednesday.
The administration’s new detention rules seek to bypass a 1997 settlement known as the Flores agreement, which governs the treatment of immigrant children in government care. A court ruling on the settlement during the Obama administration barred the government from keeping children with their parents in immigration detention centers for longer than 20 days.
“This new rule flies in the face of years of clear direction from the courts, and follows this administration’s disturbing pattern of attempting to restrict or outright eliminate legitimate pathways for immigrants to come to the United States legally,” said Todd Schulte, president of Fwd.us, a pro-immigration lobbying group.
The government must next file a brief on the legality of its plan with a federal court in Los Angeles overseeing the continuing implementation of the Flores agreement. The judge in question, U.S. District Judge Dolly M. Gee, most recently ordered the government in June to drastically improve the conditions of children in its custody, saying among other things that it must provide the children soap and toothbrushes.
The current 20-day detention limit specifies that the government may not detain children beyond that period unless they are housed in a state-licensed facility. The two largest facilities designed to house families, both in Texas, aren’t licensed to house children beyond 20 days.
To circumvent that requirement, the new set of rules would enable DHS to create its own licensing system, effectively allowing the government to house families in any of its detention facilities through their court proceedings until they are either granted asylum, paroled into the U.S. or deported.
Mr. Trump also said he was once again considering an executive order to end what is known as birthright citizenship, the automatic right to citizenship granted to anyone born in the U.S. regardless of their parents’ citizenship status.
“We are looking at that very seriously,” Mr. Trump said. “You walk over the border and have a baby, congratulations, the baby is now a U.S. citizen.”
Mr. Trump, who first raised the idea last year, didn’t offer further details, but most legal scholars have dismissed such a move as unconstitutional. Birthright citizenship, widely seen as a pillar of U.S. immigration law, is protected by the Constitution’s 14th Amendment and unbroken Supreme Court precedent.
The Trump administration has wrestled for more than a year with a surge in families fleeing Central America, largely due to gang violence and economic woes, and seeking U.S. residency. They arrive at the U.S. border and almost always turn themselves in to border agents and claim asylum rather than attempting to sneak into the country. The care needs of the children have posed a particular challenge to facilities at the border.
Mr. Trump and Republicans have argued the Flores agreement’s 20-day detention limit has driven up the number of immigrant families traveling together expecting to be released into the U.S. Mr. McAleenan said Wednesday that 475,000 immigrants traveling as families crossed the border illegally since the start of the government’s fiscal year in October, up from 107,000 through all of the previous fiscal year.
The Wall Street Journal has reported that smugglers in Guatemala offer steep discounts to migrants bringing a child, catering to the belief there that a child is a ticket to enter the U.S.
“People have caught on, people know that bringing a family is a free ticket into the U.S.,” a senior DHS official told reporters on Tuesday.
The DHS official also suggested inaccurately that the housing facilities the government would use under its new plan aren’t locked, and detained migrants can leave if they choose. The government’s current family-detention facilities are ringed by fences and locked gates, and unarmed security officers control the entrances.
Last summer, the government briefly began separating families to deter others from crossing the border, though it quickly dropped the practice for the most part after a public outcry. A federal judge in San Diego also barred the Trump administration from carrying out a family-separation policy and ordered the government to reunite thousands of children with their parents.
Immigration officials have pledged since then to try to detain families together. But authorities have separated more than 900 children from their parents in the past year, some based on claims of abuse or gang ties, according to government data that the American Civil Liberties Union cited in a court filing.
The administration has also tried to deter asylum claims by requiring many families seeking asylum to wait in Mexico while their requests are adjudicated or to lodge claims before reaching the U.S. in countries such as Guatemala. Courts have allowed those policies to go ahead for now.
The government argues longer-term detention is necessary in part because families who are released from Customs and Border Protection or ICE custody tend not to appear in court when they are summoned. But according to immigration-court statistics analyzed by Syracuse University, about six in seven families released from custody do attend their hearings.
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