Immigration Law

Trump Administration’s New Indefinite Family Detention Policy: Deterrence Not Guaranteed

Muzaffar Chishti and Sarah Pierce, Migration Policy Institute, Sept. 26, 2018 - "Having shelved a controversial family-separation practice that drew massive protest—and did not slow the arrival of Central American families at the U.S.-Mexico border—the Trump administration is proposing a new tactic: Indefinite detention of parents and children. With a proposed regulation introduced September 7, the administration is seeking to terminate the landmark 1997 Flores settlement, which for more than two decades has provided critical protections for children in U.S. immigration custody. While the U.S. government has generally been limited to detaining families for 20 days, the proposed regulation would allow President Trump to fulfill his oft-repeated goal of holding families in detention until the conclusion of their immigration hearings. The administration would accomplish this by implementing an action provided for in a 2001 court order that incorporated the understanding of all parties in Flores: That the agreement itself would terminate 45 days after the U.S. government publishes final regulations implementing it. While the Bush and Obama administrations did not issue a regulation, the Trump administration is moving forward, essentially proposing to significantly narrow the Flores protections, through its interpretation of the court settlement. The result, undoubtedly, will be new litigation. This policy on family detention, like the brief foray into family separation that was a result of the administration’s zero-tolerance policy ordering the prosecution of all illegal border crossers, is intended to deter future unauthorized arrivals, including asylum seekers. Yet there is little to suggest the policy will have the deterrent effect the administration is seeking. While both detention and prosecution have been used by past administrations with some success to deter unauthorized flows of economic migrants, there is scant evidence that these would achieve similar outcomes with respect to today’s arrivals of families and children from Central America, often driven by the desire to escape violence. ... Even if the administration is able to finalize the Flores regulations in the face of legal challenges and meet the subsequent resource constraints around detention bed space, another legal issue will likely arise, one first encountered by President Obama. After a sharp spike in the arrival of unaccompanied child migrants and families in spring 2014, the Obama administration began detaining families on a large scale. A federal district court in Washington, DC threw a wrench in that plan when it issued a preliminary injunction preventing ICE from considering the goal of “general deterrence” when deciding whether to detain families. The case was never fully adjudicated because the Obama administration reversed course before the litigation could move forward. Thus, before implementing a policy of mass family detention, the Trump administration will most likely have to answer whether the proposed regulation actually implements the Flores settlement or does something different, and whether the intention of the policy is deterrence, and if so, whether that is lawful."