Most days since November 9, 2016, I have looked at the news cycle and wondered how, exactly, things might get even worse—operating always under total assurance that they definitely will. Well, after a week of Senate hearings that will surely end in the confirmation of anti-women’s rights Judge Brett Kavanaugh to the Supreme Court, the administration announced a new regulation that makes good on something President Donald Trump has been trying to architect for months: indefinite detention for child migrants.
Before the Department of Health and Human Services and the Department of Homeland Security announced their joint proposal, the government could only hold kids for up to 20 days, whether or not they came into the United States with their families. Now, the Trump administration has moved to hold children and their families until whenever it gets around to granting them court hearings. The rule, which isn’t final, would route around the Flores settlement, an agreement that since 1997 has dictated how long Immigration and Customs Enforcement (ICE) can hold kids and under what conditions.
“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,” Homeland Security Secretary Kristjen Nielsen said Thursday, according to the New York Times. “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.”
What is the Flores settlement?
The Trump administration believes that the promise of releasing children from ICE detention centers within a month fuels “illegal” immigration, incentivizing adults to show up at the border brandishing children like tickets for free entry. As such, it has been working toward indefinite detention since it walked back its widely maligned child separation policy in June. But so far, the Flores settlement has stood as a barrier.
The agreement stems from a court case involving an El Salvadoran teenager who attempted to enter the country in 1985. As NBC reports, Jenny Lisette Flores sought to escape the civil war in El Salvador; instead, U.S. officials arrested her in Southern California and held her in a Pasadena facility for two months. The 15-year-old was subjected to routine strip searches while living in deplorable, overcrowded conditions alongside adults she didn’t know, housed together with other migrants in a converted hotel never intended for mass occupancy.
Immigration and Naturalization Services (equivalent to today’s DHS) refused to release minors to anyone but a parent or guardian—and allegedly, not without those adults completing INS interrogations, a tactic potentially intended to lure in undocumented parents. Flores’s mother, already in the United States but understandably anxious about the possibility of deportation, did not come forward. And so the young woman became the central subject of a lawsuit the Center for Human Rights and Constitutional Law filed in July of that year.
Shortly thereafter, a judge mandated that Flores be released, even as the case worked its way up to the Supreme Court. Although SCOTUS did not agree that custody of detained young people should be handed over to adults outside their families, it took strong issue with the conditions in which those young people had been held. In 1997, the plaintiffs and the government struck a deal, now known as the Flores settlement. It states that the DHS must place unaccompanied minors in the “least restrictive setting.” That means releasing them to parents, guardians, family members, approved group homes, or foster care as soon as possible. During detainment, the government had to keep kids separate from adult strangers and provide for basic necessities: food, water, medical care, education, and so forth. In 2016, a decision by the Ninth Circuit court extended the settlement’s terms to include accompanied minors and capped government custody at 20 days as a standard.