On August 21, 2019, the Department of Homeland Security (“DHS”) announced its final rule proposing changes to current standards and procedure of migrant detention. In 1997, Flores set a nationwide policy for treatment of immigrant children in government custody. The agreement established a 20-day limit for detaining children. Under the final rule, the DHS removes the limitation, permitting indefinite detention of minors with their families.

DHS states that the modification is in response to significant changes that have occurred since Flores has been in effect. Within recent years, the number of migrant families crossing the southern border into the United States has increased dramatically. Furthermore, DHS asserts that many families attempt to enter for asylum or by unlawful means along with their minors in order to be released within the country until their removal proceedings take place. In addition, the rule is said to remain consistent with the intent of Congress by ensuring humane treatment of detainees through (1) holding families together versus familial separation; and (2) ensuring migrant children in custody are treated with dignity, respect, and special concern for their particular vulnerability.

While the Trump administration claims that new protocols will address the humanitarian crisis at the border and enhance the immigration system, it is well-documented that lengthy detention of minors causes lifelong physical and mental harm to their well-being. Due to a backlog of cases within immigration courts, immigrants may wait prolonged periods before being assigned a court date to face their removal proceedings. This means that, under the final rule, families may be detained for months or years under control of federal immigration authorities.

Trump argues that the rule could discourage hundreds of migrant families and asylum seekers crossing illegally and partaking in what he calls “catch-and-release”—leaving the 20-day detention period and staying within the US until removal proceedings are commenced. However, it is unlikely that the rule will deter asylum seekers who have fallen victim to extreme violence and persecution in their home countries from fleeing to the US for protection. In addition, data shows that families released from detention or partake in case management programs have a near perfect appearance rate to their court proceedings.

The new rule has yet to be published in the Federal Register and must be granted court approval prior to taking effect. It is likely that the proposal will face a series of hurdles and backlash throughout the country. Upon approval, the final rule will take effect in 60 days.

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