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New Rules Threaten to Indefinitely Detain Children

By Josh Leach on September 7, 2018

On Thursday, the Trump administration announced new proposed regulations that would slash long-standing legal protections for immigrant families, allowing the government to detain children indefinitely. This move is the latest in a series of efforts to undermine the 1997 Flores settlement – a crucial legal safeguard that ensures children cannot be detained in federal custody for longer than 20 days and can only be held in facilities that are licensed by state governments to provide adequate child care.

Specifically, the administration’s new regulations would permit the government to detain children with their parents for the entirety of their asylum proceedings – which can drag on for months or longer – and allow federal authorities to license facilities directly as family detention centers, rather than relying on approval by state governments. If accepted, these regulations would expose more children to the traumatizing practice of prolonged detention, while removing a layer of scrutiny in a detention system that is already reckless, abusive, and deadly.

The administration has long sought to shift the blame for its infamous family separation policy onto the Flores settlement, claiming that it separates parents from their children only because it is prevented by law from detaining minors for long periods. This argument is a shameless effort to exploit a crisis of the administration’s own making – with the goal of eroding legal protections for asylum-seekers who have long been in the crosshairs of xenophobic politicians.

In reality, family separation was a direct outcome of the administration’s decision in May 2018 to implement the “zero tolerance” policy of criminally prosecuting all migrants and asylum-seekers who cross the border between ports of entry – a practice that administration officials acknowledged at the time would likely lead to family separation. The administration could end these prosecutions any time it chooses. Moreover, the government is not compelled to detain families indefinitely or to separate them, but can release asylum-seekers to family members, sponsors, and other community-based alternatives, in accordance with its own 2009 parole directive.

Family detention has been an abusive and traumatizing practice ever since it began under the George W. Bush administration in 2005 and was revived by President Barack Obama in 2014. In a report published in October 2015, UUSC found evidence of complex trauma disorder and other mental health effects on mothers and children who had been confined in family detention centers. For these reasons, UUSC and other human rights advocates celebrated the 2015 ruling by federal Judge Dolly M. Gee to extend the protections of the Flores decree to children in family detention.

With Thursday’s announcement, the Trump administration is threatening to undo this limited progress and carry the abusive policies of prior administrations to new extremes. These new regulations were published today and will be available for public comment for the next 60 days. UUSC joins other people of conscience in making our voices heard against these efforts to harm the youngest and most vulnerable among us.

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