The Border Patrol has caught — and immediately released — more than 137,000 illegal immigrant parents and children traveling together as families over the past five months.
On Wednesday, the Trump administration took a major step to try to end that practice by announcing a regulation that will allow the families to be detained, parents and children together, giving them the chance to get faster hearings and, if they lose their cases, speedy deportations.
The move, which The Washington Times reported late Tuesday, is perhaps the most daring yet by President Trump and his team as they try to gain a handle on the record-setting surge of migrant families that has overwhelmed the U.S.-Mexico border, led to emergency declarations in communities from Arizona to New Mexico, and left Congress tied in knots.
The president said the goal is to change the thinking: If illegal immigrants are detained, then they can be deported. Once others see the deportations, they will think twice about making the dangerous trip.
“They won’t come. And many people will be saved,” the president told reporters at the White House.
Mr. Trump is proposing rules to replace a 1997 court agreement, the Flores settlement, which lays out conditions for how children should be treated once they are caught at the border.
The agreement lays out standards for how quickly children must be processed, guarantees access to sanitary conditions, medical care, clothing and food, and even dictates an hour of outdoor recreation time, weather permitting.
For nearly two decades, the agreement applied only to juveniles who showed up at the border without parents — unaccompanied alien children, or UAC, in governmentspeak.
But in 2015, Judge Dolly Gee, an Obama appointee to a federal court in California, ruled that the agreement also would apply to children who came with parents. She imposed a 20-day limit on detention, which was too short to complete their cases.
The Department of Homeland Security began to process and release families almost immediately, and the number of families jumping the border began to soar as word got out that bringing a child was close to a free pass for adults who sneaked into the U.S.
Acting Homeland Security Secretary Kevin McAleenan said Wednesday that the new rules erase the 20-day limit but keep in place many of the other standards for care of children.
The rule will be published Friday in the Federal Register and will take effect 60 days after that, unless Judge Gee or another court steps in to halt it.
Stephen Yale-Loehr, a Cornell University professor and analyst on immigration law, said he expects judges to do just that.
“Federal courts have struck down almost every effort this administration has made to curtail the rights of immigrants. When will President Trump realize that immigrants in the U.S. have due process rights?” he said.
The latest immigration court numbers suggest that most of the families don’t have a good case for asylum. Of family cases heard in a 10-city pilot program over the past year, less than one-fifth of immigrants who showed up won relief. In the other 81% of cases, they self-deported or were ordered removed.
Other times, the families didn’t show at all and were ordered removed in absentia.
Mr. McAleenan said he expects legal challenges but said the new rule is on firm footing. The Flores settlement explicitly says that if the government writes rules that carry out the goals of the agreement, then Flores will expire.
The argument in court will be over whether the Trump administration’s plan is true to Flores’ original intent.
The Departments of Homeland Security and Health and Human Services, which are jointly responsible for the rule, said they received and reviewed more than 100,000 comments about a draft proposal.
Trump critics tripped over one another to denounce the final version.
United We Dream, one activist group, said detaining families was “torture.” The Congressional Hispanic Caucus said keeping the families together in detention was treating them “as if they are criminals.”
The American Psychological Association said holding children in detention, even with their families, will cause trauma and mental health problems that the juveniles will deal with for years.
Mr. McAleenan said that wasn’t the goal nor the reality. He said the cases could be completed in about 50 days, and then migrants will learn whether they are being deported or whether they have earned some status.
“There is no intent to hold families for a long period of time,” he said. “That is the intent for a fair but expeditious immigration proceeding.”
It’s the same tactic the Obama administration used in 2014 and 2015 when it faced a similar, though smaller, surge of illegal immigrant families. Then-Homeland Security Secretary Jeh Johnson ordered an expansion of family detention facilities to keep parents and children together and to deport them when their cases were processed.
Mr. McAleenan said that is more fair to everyone involved. Those who win their cases get status faster, and those who lose them are sent home faster. When families in other countries see friends and relatives being deported, he said, they will think twice about making the journey.
He also disputed accusations that the detention facilities amount to torture.
Mr. McAleenan described one of the existing three facilities, in Berks, Pennsylvania, as similar to a hotel or dorm. It is divided into suites so each family is housed separately, with furniture, linens and toiletries provided. The communal room has big-screen televisions, a gaming area and a library, and there is a set of classrooms so the children don’t miss out on school.
Soccer fields, arts-and-crafts classes and movie nights are also on offer.
The administration has about 3,000 family detention beds in three facilities. It asked for more money for family detention in the emergency border spending bill this year, but Congress refused to fund that part of the request.
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