DHS Rolls Out Plan To Close ‘Flores’ Loophole On Illegal Immigrant Family Detention

Will Racke | Immigration and Foreign Policy Reporter

The Trump administration introduced a new set of rules Thursday that would allow the long-term detention of illegal immigrant families and terminate the Flores settlement, a court order the White House says is a major “pull factor” for illegal immigration.

If enacted, the rules would give the Department of Homeland Security (DHS) broad authority to set standards for the detention and care of illegal immigrant families in its custody.

The most significant change in the 200-page proposal, which will be published in the Federal Register on Friday, permits the government to keep migrant families in detention until they are deported or win a favorable decision in immigration court.

“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,” DHS Secretary Kirstjen Nielsen said in a statement. “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.”

Current detention policy is governed by the Flores consent decree, a 1997 Supreme Court order that requires the government to release unaccompanied alien children (UAC) from detention to relatives or licensed shelters without unnecessary delay. In 2015, federal Judge Dolly Gee ruled that Flores also applied to children apprehended while traveling in family units. As part of the ruling, Gee established a 20-day maximum period that children could remain in immigration detention with their parents.

The Trump administration has sought to overturn that provision, arguing the order’s special treatment of migrant families encourages illegal immigration across the southwest border. After Gee denied the government’s request to modify her Flores ruling in June, the administration moved to pursue the matter via regulatory changes. (RELATED: Federal Judge Rejects Trump’s Request To Change Catch-And-Release Loophole)

The proposal’s most critical change would create a federal licensing system to certify detention centers for illegal immigrant families. Flores currently requires children to be detained in state-licensed family residential centers, but the proposed rule hands licensing authority to the federal government, making it easier to keep families in detention for the entirely of their immigration court proceedings.

Many of the current Flores rules will remain unchanged under the new framework, including the requirement that UAC be placed in the care of vetted sponsors or shelters contracted by the Department of Health and Human Services.

The publication of the rules in the Federal Register initiates a 60-day public comment period. After that, the Trump administration can certify the regulations as final, which would would likely trigger a court challenge.

Under Flores, the original plaintiffs can sue the government if they believe new detention policies are “inconsistent with the terms” of the settlement.

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