August 20, 2019

Trump Administration Launches Most Brazen Attack on Protections for Young Migrants
Loren Elliott/AFP/GettyIn a stunning provocation, the Trump administration reportedly plans to announce on Wednesday that it will abrogate a decades-old legal agreement in order to detain immigrant families in government custody indefinitely.The planned termination of the original Flores Settlement Agreement (FSA), a 1997 court order that regulates the conditions and duration of detention for underage migrants, is President Donald Trump’s most aggressive—and most legally suspect—attempt to circumvent legal protections for undocumented children since his disastrous “zero tolerance” policy resulted in the separation of thousands of immigrant families.The Daily Caller first reported the impending changes to the agreement on Tuesday evening, quoting a senior administration official as saying that “today the administration is closing one of the legal loopholes that has allowed human traffickers and smugglers to exploit our vulnerabilities at the southern border.”Ending the FSA, the official continued, “plays a vital role in the strategy to restore the integrity to our immigration system and our national security.”The Department of Homeland Security did not immediately respond to a request for comment on the status of the agreement.Named for 15-year-old Jenny Lisette Flores, who fled El Salvador in the 1980s and was detained among adults in dangerous conditions by the Immigration and Naturalization Services—and not for a “Judge Flores,” as Trump once claimed—the FSA created stringent standards regarding the detention and release of undocumented children in U.S. government custody. Most notably, the federal government is required to release children into the custody of licensed care programs within 20 days, as well as to place children in the least restrictive setting possible, with access to sanitary facilities, medical treatment, and contact with family members.The FSA has long been one of the highest barriers to Trump’s immigration agenda, particularly in the context of the administration’s family separation policy. Trump and administration officials pointed to the FSA as the reason behind family separation, with then-White House press secretary Sarah Huckabee Sanders telling reporters in June that “the separation of illegal alien families is the product of the same legal loopholes that Democrats refuse to close, and these laws are the same that have been on the books for over a decade.”The Trump administration has supported legislation that would make it easier to hold children indefinitely, and has brazenly flouted many of the FSA’s key stipulations, including holding undocumented minors for weeks longer than the 20-day maximum, arguing that the FSA only applies to unaccompanied children, rather than those who arrived at the U.S. border with family members. (A federal appellate court ruled in 2016 that the FSA applies to all minors, unaccompanied and otherwise.)In September 2018, the Trump administration floated a potential rule change that would allow for the long-term detention of immigrant children and families by allowing the federal government to license detention centers run by Immigration and Customs Enforcement as suitable for the long-term detention of children. The FSA requires that children be released after 20 days into the custody of state-licensed residential facilities—the proposal would instead give that licensing authority to the federal government.“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,” then-Homeland Security Secretary Kirstjen Nielsen said in a statement at the time. “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.”After the plan was first crafted, the Department of Homeland Security punted on the proposal, instead asking Congress to re-work Flores.Like many of the Trump administration’s other attempts to weaken legal protections for immigrants, the decision to change the FSA to allow for the indefinite detention of families will almost certainly be met with legal challenges from advocacy organizations. The American Civil Liberties Union, the Southern Poverty Law Center, and the Refugee and Immigrant Center for Education and Legal Services did not immediately respond to a request for comment on the reported rule change.
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