U.S. moves to detain asylum seekers indefinitely in 'campus-like' settings

The Trump administration on Wednesday unveiled new rules that would allow officials to detain migrant families indefinitely while judges consider whether to grant them asylum in the United States.

Both Trump, Obama administrations have previously tried and failed in bids for indefinite detention

Acting secretary of the U.S. Department of Homeland Security Kevin McAleenan announced Wednesday the administration hopes to implement changes to the so-called Flores ruling that limits the amount of time migrant children can be held in detention while awaiting asylum. (Andrew Harnik/The Associated Press)

The Trump administration on Wednesday unveiled new rules that would allow officials to detain migrant families indefinitely while judges consider whether to grant them asylum in the United States.

The new rules, which are certain to draw a legal challenge, would replace a 1997 legal agreement that limits the amount of time U.S. immigration authorities can detain migrant children. 

The so-called Flores settlement requires the government to keep children in the least restrictive setting and to release them as quickly as possible — generally after 20 days in detention — to, in order of preference, parents, other adult relatives or licensed programs willing to accept custody. 

Administration officials blame the Flores settlement for a spike in immigration, saying it encourages migrants to bring children with them so they can be released into the United States while their court cases are pending, a process that can take years due in part to the number of immigration judges.

"This single ruling has substantially caused, and continued to fuel, the current family unit crisis and the unprecedented flow of Central American families and minors illegally crossing our borders, until today," said said Kevin McAleenan, acting secretary of the Department of Homeland Security.

The new rule is due to take effect within 60 days of filing, but that deadline is likely to slip as it is certain to face numerous legal challenges.

"We do expect a dialogue in the courts," McAleenan admitted.

The entrance to the South Texas Family Residential Center in Dilley, Texas, seen here in a 2015 photo. The 2,400-bed detention facility is one of three currently run by Immigration and Customs Enforcement. (Eric Gay/The Associated Press)

In fact, a federal judge in 2015 rebuffed an attempt by the administration of Barack Obama to indefinitely detain migrants under certain circumstances in the wake of a surge of arrivals at the border. It was ruled that the Flores agreement applied not only to unaccompanied minors but also to children who arrived with adults.

The American Academy of Pediatrics has repeatedly said that detention is not suitable for children, who may suffer numerous negative physical and emotional symptoms. Officials said the families would receive mental health treatment, counselling and other services.

The American Civil Liberties Union called the announcement on Wednesday "yet another cruel attack on children, who this administration has targeted again and again with its anti-immigrant policies."

Democratic House Speaker Nancy Pelosi predicted in a statement that the courts would "swiftly strike it down."

"The administration is seeking to codify child abuse, plain and simple," she said. "Its appalling, inhumane family incarceration plan would rip away basic protections for children's human rights, reversing decades-long and court-imposed rules and violating every standard of morality and civilized behaviour."

Immigration officials have struggled to handle a surge of families and children fleeing violence and poverty in Central America that have at times overwhelmed border officials.

DHS officials say they have apprehended 390,000 family units since last October.

Increase in beds not coming anytime soon

The government currently has only between 2,500 and 3,000 detention beds for family units — at two locations in Texas and one in Pennsylvania — and said any expansion of detention centres would meet a high standard of care in "campus-like" settings with appropriate medical, dining and recreational facilities.

McAleenan took pains to distinguish them from the administration's temporary border patrol stations, where lawyers and internal government watchdogs reported hundreds of children and families being held in squalid conditions.

The administration earlier this year proposed increasing the number of beds nationwide to about 15,000, but it was a non-starter in Congress, where Democrats control the House and have continually hammered the administration for what it has characterized as inadequate care of migrants lawfully applying for asylum.

A $4.6 billion US border bill passed by Congress in June contained more than $1 billion to shelter and feed migrants detained by the border patrol and almost $3 billion to care for unaccompanied migrant children who are turned over the Department of Health and Human Services, but rejected the administration's request for additional Immigration and Customs Enforcement detention beds.

McAleenan said the government believes some families apprehended on the border were "fraudulent" based on DNA testing of some migrants in pilot programs implemented in recent months.

"No child should be a pawn," McAleenan said at a news conference announcing the rule. "Or, as one gentleman in Guatemala told me, 'as a passport to the United States.'"

Previous bid deemed 'cynical' by federal judge

The administration sought to deter migrants last year through a "zero tolerance" policy that separated thousands of children from their parents, but abandoned the effort in the face of widespread public outrage. Several congressional hearings have included testimony that painted a chaotic, insufficient response by the administration to reunite those who had been separated.

In the wake of the outcry, the Trump administration tried last year to supercede Flores and detain migrants indefinitely. The same U.S. District Court judge that made the Obama-era ruling, Dolly Gee, rejected the attempt as "cynical" and "unconvincing."

Over the last four years, only 18 per cent of immigrants who have been released into the United States complied with a court order to leave the country, while 97 per cent of those in detention were removed, according to DHS figures.

Even before the Trump administration sought to clamp down on irregular and legal immigration, only 21 to 25 per cent of asylum claims from El Salvador, Honduras and Guatemala were approved between 2012 and 2017, according to tracking by Syracuse University's Transactional Records Action Clearinghouse.

Republicans have argued that too many, once released into the community, fail to show for their hearings months or years into the future, or find ways to stay in the country even after an adverse ruling.

Trump has made a crackdown on immigration, legal and illegal, central to his presidency. The administration unveiled a sweeping rule last week that would deny visas and permanent residency to poor migrants, a move that experts say could cut legal immigration in half if it survives court challenges.

With files from CBC News