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What Trump’s new immigration rules mean for the detention of migrant children

The Trump administration is proposing major changes to rules about how long migrant families can be held in government custody, arguing that the move will yield more humane conditions in detention facilities. But critics fear the regulations will have the opposite effect. William Brangham talks to Warren Binford of Willamette University College of Law, about why she is "horrified" at the proposal.

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  • William Brangham:

    In his effort to crack down on immigration along the southern border, the president has repeatedly tried to change how the U.S. government detains migrants.

    Today, his administration went further than it has before, announcing big changes to the regulations that have been in place for decades. The president's team says the overhaul wasn't only overdue and legally required, but that it will lead to more humane conditions. Migrant advocates say it'll do the opposite.

    Today's move effectively paves the way for the indefinite detention of migrant children and their families, until their immigration cases are decided.

    Acting Homeland Security Secretary Kevin McAleenan announced the change.

  • Kevin McAleenan:

    At the heart of this new rule are two core principles: that families should remain together during immigration proceedings and that conditions for care of children must be appropriate.

  • William Brangham:

    The new regulation would end the current standard, the so-called Flores agreement. Since 1997, that federal court settlement required the government to hold children in the least restrictive setting possible, establish welfare standards, and release them within about 20 days.

    As a result, migrant families were often released into the U.S. while their asylum requests worked their way through the court system.

  • Kevin McAleenan:

    The purpose of holding individuals in administrative custody during immigration proceedings is to get an immigration result as expeditiously as possible. There is no intent to hold families for a long period of time.

    In fact, we have the prior experience that shows we were able to average under 50 days. That is the intent, for a fair, but expeditious immigration proceeding.

  • William Brangham:

    McAleenan said children will also be better protected under the new regulation.

  • Kevin McAleenan:

    No child should be a pawn in a scheme to manipulate our immigration system, which is why the new rule eliminates the incentive to exploit children as a free ticket or, as one gentleman in Guatemala told me, a passport for migration to the United States.'

  • William Brangham:

    President Trump today echoed his support for this rule change.

  • Donald Trump:

    President Obama and others brought the families apart, but I'm the one that kept the families together. With what we're doing now, we will do even more of that, but it will make it almost impossible for people to come into our country illegally.

  • William Brangham:

    While President Obama did prosecute some migrant adults and deported more than five million authorized immigrants, neither he nor his predecessor enacted mass separations of families.

    In recent months, border officials have been overwhelmed by the massive influx of families and children fleeing violence and poverty in Central America. U.S. Customs and Border Protection estimates more than 432,000 family units were taken into custody from October through July alone.

    Most were released into the U.S. That's a 456 percent increase over the same period last year. McAleenan said some migrants will now go to family residential centers that have higher standards than current overcrowded border facilities.

  • Kevin McAleenan:

    They are campus-like settings with appropriate medical, educational, recreational, dining, and private housing facilities. For example, the first family residential center in Berks, Pennsylvania, has suites where each family is housed separately.

  • William Brangham:

    ICE currently has three such family residential centers, but they're already nearing full capacity.

    The Justice Department, in its announcement, said the Flores agreement was originally only supposed to remain in place for five years. In 2001, the parties agreed to terminate the policy after a final rule-making, but no previous administration issued a final rule until now.

    House Speaker Nancy Pelosi blasted the change, writing — quote — "The administration is seeking to codify child abuse, plain and simple."

    The Congressional Hispanic Caucus also denounced the move, saying — quote — "They're punishing vulnerable families as if they are criminals, when they're asylum seekers fleeing violence, gangs, rape, and murder."

    The new regulation will be published in the federal register Friday and go into effect 60 days later. Legal challenges are expected within days.

    So, let's explain in greater detail how these changes to the Flores agreement could play out.

    We get the perspective of a legal scholar who has visited many of the current migrant detention centers.

    Warren Binford is the director of the clinical law program at Willamette University College of Law in Salem, Oregon. She was part of the team that visited one center in Clint, Texas, this summer, and strongly criticized the conditions she witnessed.

    Warren Binford, welcome back to the "NewsHour."

    I wonder if you could just give me your reaction to what the administration is proposing today.

  • Warren Binford:

    Well, unfortunately, William, I'm quite horrified in hearing what the administration is proposing.

    Indefinite detention of children is something that we saw in the apartheid South Africa. It's something that we saw in Nazi Germany. It's not something that we would ever expect to see in 21st century America.

  • William Brangham:

    I mean, those are pretty harsh comparisons to make.

    And the administration, if you listen to Secretary McAleenan today, he said these are going to be better conditions, children will be housed with their parents. He seemed to paint a picture that is much better than the conditions that you were here on the "NewsHour" this summer worried about.

  • Warren Binford:

    Well, it's not really a question of conditions at this point, because there is no question that we need to make sure that when the children are in government custody that they need to be well-cared-for.

    The issue is that children don't belong in government custody to begin with. Children are not supposed to be detained. This is one of the fundamental values of Flores, is that children are supposed to be released and placed with their family in the United States as expeditiously as possible.

    And, basically, what the administration is trying to do is to throw out the very heart of Flores, which is that children are not supposed to be detained.

  • William Brangham:

    I mean, the administration argues that Flores was outdated, they have the legal authority to do, this other administrations didn't, and that, if they keep to the spirit of Flores, that they have the authority to do that.

    You don't think that that's true?

  • Warren Binford:

    Well, I think that the administration is telling the truth, in that Flores was never intended to be permanent, that it was the responsibility of administration and it's also been the responsibility of Congress to establish standards for the care of children consistent with Flores.

    My criticism is that the regulations that have been proposed, they're no resemblance not only to the spirit of Flores, which they flagrantly violate, but also to the fundamental protections there as well.

    So, basically, what this is, is a gutting of Flores and saying that, despite the legal holdings over the last 30 years in this case, as well as the research that's been done with regard to child welfare and child health, that, you know, children are not supposed to be detained indefinitely.

    And that's basically what this administration is trying to do.

  • William Brangham:

    What are the specifics about — you said that this would violate Flores.

    What are the things that you argue? I mean, we still don't know what the final rules are. We haven't seen those until Friday. What — how is it that they're violating Flores?

  • Warren Binford:

    So, in several ways.

    For example, the most obvious way is the proposal that they detain children at all, that children are not supposed to be detained. This hurts children. And we need to care for these children in a way that places them in the least restrictive environment possible. That's what the law provides. And that is with families in normal homes. So that's the first way that this violates the children's rights.

    The second way that this violates the children's rights is that it not only is proposing that children be detained, but that they be detained in unlicensed facilities. The government has no facilities that have been licensed to care for families.

    And so they're talking about having the federal government regulate itself and monitor itself. And we have already seen what happens when there's no one monitoring the facilities on a regular basis. I have seen that with my own eyes, and it's a horrendous situation.

    A third way is that they're talking about having these children have to put together their court cases within a matter of days or weeks. And the fact is that we know that these children, in order to put together their asylum cases, that they're going to need the assistance of attorneys, they're going to have to gather their evidence. And we need to make sure that these children's due process rights are protected.

    So, we're seeing multiple violations of these children's rights.

  • William Brangham:

    One of the arguments that the administration makes is that, under the current agreement, that people who wanted to migrate illegally to the United States knew that this system existed, that they couldn't be kept for very long in a center in the U.S., and that it was, in essence, a magnet, that it was drawing people to the U.S. because of this system that offered, so, basically catch and release, as the president likes to put it.

    Is there any evidence that that's true, that this is a magnet?

  • Warren Binford:

    I have never seen any evidence of that.

    What I know is, the reason that most of these children are coming to the United States is that they're being threatened with murder, they're being threatened with sexual assault, sexual violence. They're experiencing domestic violence.

    You're seeing ineffective governments. You're seeing — or gang organizations, criminal organizations that are taking over these children's streets where they live, the schools that they attend, and coming to the very homes and threatening their lives.

    And so these children are simply trying to survive. This is not an opportunistic migration that we're seeing, but, rather, an attempt by these children to survive what are very violent threats at home.

  • William Brangham:

    Another argument the administration makes is that the system we have now helps fuel human trafficking coming across our border.

    Is there evidence for that?

  • Warren Binford:

    No, I'm not seeing any evidence of that at all.

    As a matter of fact, every child that I interviewed in the Border Patrol facilities in June came over with a family member. And there was only one child whom I interviewed who it appeared had come over with a coyote.

    When we treat those illegally, those are not considered to be human trafficking. Having an adult with you doesn't make that person a trafficker. And I think that it really detracts from the very real issue of human trafficking for the administration to so disingenuously try and present these children as being trafficked, when, in fact, their parents, their family members are trying to simply get them to safe homes in the United States.

    And you have to remember that 40 percent of these children, approximately, have a legal right to be here in the United States. So to pretend that these children are being trafficked, it's really to do these children a disservice.

  • William Brangham:

    All right, Warren Binford, thank you very much for being here.

  • Warren Binford:

    Thank you, William.

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