DAVID GREENE, HOST:
Families who cross into the United States illegally could soon be detained indefinitely - that is, if the Trump administration gets its way. Acting Homeland Security Secretary Kevin McAleenan said this rule change will send a message that if you come to the U.S. along with children, don't assume you'll be set free.
(SOUNDBITE OF ARCHIVED RECORDING)
KEVIN MCALEENAN: By eliminating the incentive to make the journey to the United States as a family, the new rule would reduce the unprecedented volume of family units that are straining the already limited resources of our department components and put children throughout the region at risk.
GREENE: Now, this new rule would replace the Flores Agreement, a decades-old rule that sets limits on how long migrant children can be detained.
Elora Mukherjee is professor of law and director of the Immigrants Rights Clinic at Columbia Law School, and she's on the line from New York this morning.
Thank you for taking the time.
ELORA MUKHERJEE: Thank you for having me.
GREENE: So if this rule were to take effect, and I know it would have to probably survive legal challenges, but what would be the new reality for migrant families?
MUKHERJEE: The new reality for migrant families would be that children and families would be detained together indefinitely. The Flores settlement agreement currently provides for three basic protections for children in federal immigration custody. It provides for their release as promptly as possible from custody in recognition of the particular vulnerability of children. The proposed rule would gut that protection and allow indefinite detention.
Second, the Flores settlement agreement currently provides for basic minimum standards of care for children, including requiring detention facilities to be subject to state licensing requirements. That would be entirely eliminated.
And third, the Flores settlement agreement currently provides for independent oversight of these facilities so that monitors, like me, can visit children in federal immigration custody to see if they're being treated appropriately. And the proposed rule would gut and eliminate that protection entirely.
So the question is, why should the American people trust that this agency has the ability, the power and the insights to care for children? DHS has proven time and time again that it is incapable of providing appropriate care to kids. And groups as disparate as the American Pediatric Association to DHS's own advisory committee have found that detaining children is never in their best interest.
GREENE: Wow. I feel like each of those things you brought up could be an entire conversation. Let me ask you about one. You said that families would be detained together. So does this eliminate something the Trump administration was so intensely criticized for, which was separating children from their families because they would now be held together?
MUKHERJEE: Right. So the administration has co-opted the language of the American people which is families belong together. But families belong together and children should be free. Families don't belong together so that children can be in prison indefinitely. Now, in terms of the incentive, it's a very interesting issue.
The Obama administration also tried to detain refugee families, families seeking asylum indefinitely. That effort was held to be impermissible in the federal courts. And empirical studies analyzing that period have found that the indefinite detention of families then did not, in fact, result in drops in the number of immigrants coming to the United States and the number of asylum-seeking children trying to come to the United States. So the...
GREENE: So do you see a legal argument here that they could win in court and challenge this new rule?
MUKHERJEE: No. No. So this new rule will be challenged in the Flores case itself. And we can expect to see other challenges as well based on the Administrative Procedures Act, the Trafficking Victims Protection Reauthorization Act and perhaps the Constitution itself.
GREENE: All right. Elora Mukherjee directs the Immigrants Rights Clinic at Columbia Law School.
Thanks so much.
MUKHERJEE: Thank you. Transcript provided by NPR, Copyright NPR.