Profs. Wehle and Keyes Respond to Trump Administration Change to Immigration Policy That Ends Flores Agreement

The Trump administration today issued new regulations for detaining migrant children, scrapping more than two decades of protections that limited their time in detention to a maximum 20 days. The new rules, due to take effect Oct. 22–although legal challenges are expected–would allow the government to detain children and families indefinitely, revise the minimum standards of care and, if the rules stand up in court, end the 22-year-old consent decree known as the Flores agreement, which has protected the nation’s youngest and most vulnerable new arrivals.

Professor Kim Wehle

Prof. Kim Wehle

Longstanding immigration policies were originally designed to deal with adults and children who arrive in the United States separately. Speaking this morning on CBSN network, Prof. Kim Wehle said the Trump administration is seeking to resolve the issue of what happens to children when they arrive at the border in the company of adults. That is how the family separations came about, she said, because of the 20-day limit on how long children could be detained.

In order to keep detained families together, the administration argues, it’s necessary to eliminate the 20-day maximum. According to public statements made by Kevin McAlaneen, acting secretary of homeland security, almost 475,000 members of families have crossed the southwestern border in the past 10 months, which is three times the previous record for a full year. He said the number of apprehensions of families crossing illegally was up 469 percent from the previous year.

Professor Elizabeth Keyes

Prof. Elizabeth Keyes

“The [Trump] administration frames this new policy as a way to ‘disincentivize’ migration,” said Prof. Elizabeth Keyes, director of the UB School of Law’s Immigrant Rights Clinic. “What this administration persistently fails to recognize is that when people are fleeing for their lives—and specifically for their children’s lives—there is no disincentive that will work.

“We know this from the many Central American clients that the Immigrant Rights Clinic represents. These are families facing immediate and severe threats, fleeing countries where the police are almost entirely unresponsive to the violence these families face. ‘Disincentivizing’ migration like that will not work, and it erodes our standing in the international community,” Keyes said.

Wehle said the administration’s poor track record of caring for migrant children, coupled with the fact that private vendors would be given authority to audit how well Immigration and Customs Enforcement carry out their responsibilities toward the detained children, suggests we should “keep an eye on this. … This suggests that we are legalizing, potentially, inhumane circumstances,” she said.

“It’s not good news for children unless you trust that ICE and the government is going to treat them humanely and minimize trauma,” Wehle said. “That is the question that really Congress should address. … Congress is not stepping up to the plate to do its job. And so this kind of policy making is being pushed either to the courts … or to executive branch agencies, and of course executive branch agencies are not accountable to the public. … The Trump administration is really responding to inaction by Congress.”

About University of Baltimore School of Law

The University of Baltimore School of Law provides a rigorously practical education, combining doctrinal coursework, intensive writing instruction, nationally renowned clinics and community-based learning to ensure that its graduates are exceptionally well prepared to practice law.
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