Editor’s Note: Raul A. Reyes is an attorney and a member of the USA Today board of contributors. Follow him on Twitter @RaulAReyes. The opinions expressed in this commentary are solely those of the author. View more opinions on CNN.
When all else fails, lock up children. That’s the message from the Trump administration, which on Wednesday announced a regulation allowing it to indefinitely detain migrant families who arrive at our southern border. The new rule would replace a court agreement known as the Flores settlement, which sets minimum standards for migrant children in government custody, and limits their detention to 20 days.
Speaking at the White House, President Trump told reporters that his new rule will “make it almost impossible for people to come into our country illegally.”
What the rule won’t do is help solve the humanitarian crisis at the border. The new rule is legally and logistically suspect. The only thing it guarantees is that more children will suffer greatly.
For decades, the treatment of detained migrant children has been governed by the Flores settlement. Aside from limiting the length of time that the government can keep immigrant children in custody, it mandates that kids be kept in the least restrictive setting possible, and that they receive food, water and other basic services.
Acting Secretary of the Department of Homeland Security Kevin McAleenan said the Flores settlement has been the driving force behind unauthorized migration from Central America to the U.S. “This single settlement has substantially caused, and continues to fuel, the current family unit crisis… until today,” he said Wednesday.
But he has no data to back him up. On the contrary, ample research shows that the migrants are driven here by violence, gang activity, poverty and civil instability in Guatemala, Honduras and El Salvador.
As they have done throughout American history, people are fleeing for their lives from dangerous nations to seek safety, a new start and better lives in our country. They are not rushing to the US to take advantage of Flores.
Members of the Trump administration are fond of characterizing the Flores settlement as a “loophole” in need of fixing.
The Flores settlement began as a 1985 class-action suit against the Immigration and Naturalization Service, the predecessor to the Department of Homeland Security, over its treatment of migrant children. It took 12 years of litigation and negotiation to reach the final agreement in 1997. The settlement was painstakingly crafted by immigrant advocates and government lawyers and has endured through Republican and Democratic administrations.
Getting rid of the Flores settlement would allow the government to lock children up for as long as their immigration cases take to resolve. This is chilling and simply inhumane, and not just because detention centers have repeatedly been found to be crowded, dirty and unsafe. Just this summer, DHS’s own inspector general found conditions at migrant detention centers to be “an immediate risk to the health and safety” of detainees.
Beyond that, doctors and child welfare experts are unanimous in their conclusion that imprisoning children harms their physical, emotional and psychological development. At least six migrant children have died in the Trump administration’s custody. Why would anyone want to place kids in detention for longer periods of time?
Replacing Flores would also amount to a logistical nightmare. The US has three family detention centers with a combined capacity of about 3,000. Contrast that with the roughly 432,000 MEMBERS OF “family units” arrested at the border between October and July, according to Customs and Border Protection. It defies reality to think that the administration could possibly come up with safe places to house such large numbers of people for long periods of time.
Instead they should be screened and processed in a timely manner, then released to family members or sponsors. The vast majority of children and families seeking asylum show up for their court dates when they receive appropriate support, like the kind they received through the Ice Family Case Management Program. Yet the Trump administration abruptly terminated this program in June 2017, indicating a lack of good faith in ensuring that migrants receive proper assistance and guidance with their immigration cases.
“No child should be a pawn in a scheme to manipulate our immigration system,” said McAleenan. He’s right. But it is the Trump administration that is using children as pawns to further its xenophobic agenda. Central Americans have the legal right to apply for asylum, and families should not face indefinite detention for exercising this right.
The administration’s new rule is sure to face significant legal challenges. In fact, a federal court judge recently affirmed that using detention as a deterrent to seeking asylum is an unconstitutional violation of due process.
Trump’s attack on the Flores settlement is an attack on children. His administration’s lack of regard for the care and well-being of migrant kids is a betrayal of American values of fairness and compassion.