'Un-American': State Lawmakers Denounce Trump Rule to Detain Migrant Kids Longer

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California Gov. Gavin Newsom speaks during a news conference with California Attorney General Xavier Becerra at the California State Capitol on Aug. 16, 2019, in Sacramento. (Justin Sullivan/Getty Images)

Several of California's elected representatives decried an announcement Wednesday by the Trump administration of a new rule that could allow children to be locked up indefinitely in family immigration detention centers while their cases are heard in the courts.

If implemented, the rule would end a decades-old legal agreement, known as the Flores Settlement, that says children in immigration detention must be promptly released or transferred to state-licensed facilities for minors. Courts have interpreted the agreement to mean migrant kids should not be locked up in unlicensed detention for more than 20 days.

California Gov. Gavin Newsom said the Trump administration’s move was “simply wrong and immoral.”

“It’s wrongheaded,” Newsom said while visiting students at an elementary school in Paradise. “It’s consistent with bad decision-making (by) the administration on this topic.”

The new rule is scheduled to take effect 60 days after it is published in the Federal Register, reportedly later this week. The state Attorney General's Office didn't say if it would sue over the rule, but lawsuits are widely expected to delay its implementation.


The policy aims to halt a dramatic increase in the number of Central American families crossing the southern border. After they are arrested, many are released into the country as they await court hearings, said Homeland Security Acting Secretary Kevin McAleenan.

“The driving factor for this crisis is weakness in our legal framework for immigration,” said McAleenan. “Human smugglers advertise, and intending migrants know well, that even if they cross the border illegally, arriving at our border with a child has meant that they will be released into the United States to wait for court proceedings that could take five years or more.”

The move by the Trump administration was labeled as a “misguided attempt” by the American Psychological Association, which called on Congress to overturn the new policy.

“The large majority of these children have already experienced trauma before arriving at immigration facilities, and the longer they are held in detention, the more likely their mental health will continue to suffer,” said Jim Diaz-Granados, deputy CEO of the association.

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Since last October, border officials arrested or encountered nearly 475,000 individuals traveling in families, three times as many as any other year, said McAleenan.

Many Central American migrants are seeking asylum in the U.S., saying they are fleeing extreme violence and poverty as well as government inaction to implement the rule of law in their home countries.

It’s unclear where immigration authorities would detain families for extended periods of time since current family detention centers only have capacity for 3,400 people. Homeland Security inspectors found evidence of inadequate care at the largest such facility in Dilley, Texas, including a lack of qualified pediatricians and access to emergency and specialty care.

McAleenan said the new rule also establishes “high standards” of care for immigrant children detained with their parents. The policy allows U.S. Immigrations and Customs Enforcement to hold families in facilities that are licensed or meet the agency’s family residential standards — as evaluated by a third party if licensing is not available through a state, according to Homeland Security.

Immigration advocates and California Attorney General Xavier Becerra worry the administration will undermine the ability of states to monitor conditions in facilities for migrant kids.

Becerra said longer detentions would lead to “irreparable harm to children, their families and the California communities that accept them upon their release from federal immigration custody.”

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“Children don’t become subhuman because they are migrants. All children are God’s children, our children, and America should never treat them otherwise,” Becerra said in a statement. “Yet, the Trump Administration is about to take America down that dark road, stripping protections that spare children from the trauma and harm caused by unlawful, cruel and prolonged detention.”

But others applauded the administration’s announcement, decrying the Flores agreement as a “magnet” for illegal immigration that contributes to the flow of Central Americans arriving at the border.

“It is long past time to do away with Flores and enact a sensible policy that protects families while respecting the rule of law,” said John Daniel Davidson, an immigration policy fellow at the Texas Public Policy Foundation. “The new rule will ensure that children are kept with their families while their case is being adjudicated, while improving the standards of care while they are in federal custody.”

In 2001, the federal government agreed to abide by Flores until it came up with final rules for the treatment of detained migrant kids. That didn’t happen until the Trump administration took up the issue, the Department of Homeland Security said in a statement.

Members of the California delegation to the U.S. House of Representatives also strongly denounced the new Trump administration rule.

San Jose Rep. Zoe Lofgren said the rule represents “yet another attempt by the Trump Administration to indefinitely jail mothers and children seeking asylum.”

“The overwhelming evidence shows that these immigration detention facilities are harmful to their health and well-being,” said Lofgren, an immigration attorney who chairs the House Judiciary Subcommittee on Immigration and Citizenship. “Detaining families indefinitely is immoral, unacceptable and un-American.”

Palo Alto Congresswoman Anna Eshoo, who visited detention facilities at the border in July, said the Trump administration’s policies have “exacerbated the humanitarian crisis.”

“Today’s rule is yet another action to punish refugees,” she said in a statement. “The courts have consistently upheld the rights of migrants in detention, and my hope is that they will overturn the Trump Administration’s inhumane rule.”

KQED reporters Katie Orr and Julie Small contributed to this story.