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New proposed regulations seek to circumvent Flores settlement

New regulations proposed by the Trump administration seek to lengthen the amount of time the government can detain migrant children beyond the current standards set in the 1997 Flores settlement. The settlement, stemming from Reno v. Flores (1993), limits detention of migrant children to 20 days and sets out standards for facilities used to house children.

The new proposed rule titled “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children” would effectively replace the Flores settlement as a new federal rule for managing the detention and treatment of migrant children. The new rule entered the Federal Register September 6 and now waits in a 60-day period of open comment before full implementation can begin.

Longer detention time of migrant children

One major change from the existing limits in Flores would be to lengthen the amount of time the government can detain migrant children. The administration’s new policy seeks to detain families together in share custody for the full length of their immigration case.

The length of immigration cases can range from days to months or even years, though the administration claims cases move quicker when immigrants remain in detention. The Department of Homeland Security reports the average case length is 39 days for immigrants held in detention while a case is pending.

New federal system for detention centers

The other main takeaway from the new proposed rule is a change in licensing immigrant detention facilities. The current system calls for a state-based licensing system for managing facilities, but the administration has long pushed for an exemption for Immigration and Customs Enforcement facilities designed to house entire families together.

In June, the Department of Justice applied for relief from the Flores settlement agreement to accomplish both of the major aspects of this new rulemaking through the court system. Judge Dolly Gee of the U.S. District Court for the Central District of California, the key overseer of Flores, rejected that application on July 9 calling it the administration’s attempt to shift responsibility to the courts rather than use legislative or executive action to resolve the issues.

The rule is not set in stone as it now enters a 60-day period for public comment before the administration can work to certify it as binding. The rule represents another move by the current administration to systematically change the policies and standards for immigration in the U.S.

For those wary of the fluctuating climate of immigration policy in the U.S., reach out to legal and advocacy experts for additional resources about potential changes. It’s a tenuous time with the current administration, but dedicated experts and advocates continue to work and fight for the rights and fair treatment of immigrants coming to and living in the country.

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