Upending two decades of precedent surrounding child detention, Trump’s new proposal to deal with undocumented immigration could see children apprehended by immigration authorities facing jail time for months, perhaps indefinitely, as their immigration proceedings are pending.
Until now, under a 1997 legal settlement known as the Flores Agreement, federal authorities had been barred from detaining children in “jail-like” settings. If the Trump administration prevails in overturning the precedent, children could be imprisoned, with or without their parents—even when they are pursuing a valid asylum claim, and even when their parents are being prosecuted separately for illegal border crossing. While the administration is pressing its new plans for indefinite detention, new internal auditing reports have emerged detailing egregious failures of the government to protect the health, welfare, and safety of migrant children in detention, or even to track family members who had been separated by authorities. A DHS watchdog report noted that children were kept in chaotic and inhumane conditions for prolonged periods as they underwent processing at the border.
The Flores settlement that Trump wants to scrap was designed to prevent children from being subjected to abusive conditions in detention. The original purpose of Flores, according to a legal analysis by the Tahirih Justice Center, was to “minimize the use of immigration detention for children and to maximize children’s well-being if and when detained.” The underlying principle is that civil immigration detention should not be imposed as “deterrence” for unauthorized migration. Now, in a perverse attempt to circumvent Flores, the Justice Department has proposed tweaking the regulations to allow immigrant prisons to be considered suitable facilities for housing kids. The new scheme, Tahirih argues, could “all but eliminat[e] such protections in practice, giving the [Department of Homeland Security] the authority to incarcerate children for longer periods of time and in facilities licensed by DHS itself.”
But human-rights advocates argue that, rather than creating new ways to imprison kids, the government has a humanitarian and constitutional obligation to make every effort to keep children free, safe, and with their families whenever possible. While the Obama administration also presided over years of brutal detention practices and record deportation rates, Trump’s zero tolerance policy marks an unprecedented escalation in the systematic cruelty of the detention system. Unraveling Flores would empower Trump not only to cage migrant families but to tear them apart, possibly forever.