The Trump administration's termination of a 1997 court agreement limiting government detention of immigrant children to 20 days could further swell the numbers of people detained in facilities with government funds and grow lucrative private contracts.
Under the finalized rule, announced on Wednesday by HHS and the Department of Homeland Security, U.S. Immigration and Customs Enforcement will be able to hold families with children in their licensed facilities or "facilities that meet ICE's family residential standards."
This and other provisions will replace the long-standing Flores settlement agreement, which in 1997 set standards for treatment of minors and has been used in lawsuits against various presidential administrations. The Trump administration used the Flores ban on indefinite detention of minors as the basis for its former "zero tolerance" family separation policy.
The new regulations will also change the way HHS "accepts and cares for" unaccompanied immigrant minors.
Federal courts ruling in cases based on Flores had previously said children couldn't be detained longer than 20 days.
Over the past few months the U.S. Customs and Border Patrol agency has issued contracts worth millions to expand temporary shelters. In April, New York-based Deployed Resources won a $37 million contract for temporary facilities in El Paso and Donna, Texas, for a four-month base period.
Another $15 million contract for a similar tent shelter in Yuma, Ariz., was announced in late June.
"In many ways migration flows are big business," said Marisa Limon Garza, deputy director of Hope Border Institute, a Catholic organization in Texas. "The Flores settlement agreement was really designed to protect children. Unfortunately the changes the administration is putting forth will radically change what is being provided for these most vulnerable members of society."
The Trump administration's new rule follows reports from government watchdogs on poor conditions and calls for greater oversight.
In July, DHS' acting inspector general and HHS' assistant inspector general told House lawmakers that the system was strained and that children remain lost.
"(I)n May and June of this year, we observed dangerous overcrowding and prolonged detention in CBP facilities in both El Paso and the Rio Grande Valley," DHS acting Inspector General Jennifer Costello told the House Committee on Oversight and Reform on July 12. "We also documented … lack of access to hot meals and showers."
On the HHS side, where the Office of Refugee Resettlement had to care for children separated from their parents at the border last year in a policy that the Trump administration implemented and then reversed, Assistant Inspector General Ann Maxwell said the department has struggled to "appropriately place children" despite a June 2018 court order that said separated children needed to be reunited with their parents.
The Office of Refugee Resettlement "has continued to receive children who have been separated since the June 2018 court order, and DHS has provided limited information to ORR about those separations which may impede ORR's ability to appropriately place children," Maxwell told the House panel during the same hearing.
Immigration activists have for years condemned conditions in facilities by U.S. Customs and Border Patrol, which oversees ICE.
Elora Mukherjee, a professor of law at Columbia University where she is the director of the Immigrants' Rights Clinic, also testified before the House committee on her own investigation into children in CBP custody and described what she discovered this past June at two CBP facilities in Texas as an "urgent humanitarian crisis unlike any we have seen before."
"Never before have we learned of 700 children being detained in a facility built for 104 or 106 adults," she told lawmakers. "Never before have we met with children detained in CBP custody for a week, much less weeks, and nearly a month. Never before have we had to directly intervene to get critically ill babies admitted to the hospital."
Limon Garza expects a legal challenge to the rule but voiced her worries that conditions may only worsen if it's implemented.
"We know that even now with the (Flores) standards it has been difficult for the administration to have met them," she said, describing conditions of inadequate food, chilly room temperatures, lack of drinking water and poor hygiene.
She also is also concerned that advocates will see further curtailment of their access to the facilities.
"There are ways the government has used the language of protecting children and has taken it to a degree that actually perverts the definition, and uses as a weapon to keep people away from children," she said.
In describing the new system, the Trump administration Wednesday said the Flores agreement was always supposed to be temporary.
"Beginning in 2005, prior administrations repeatedly announced plans for a rule," DHS said in its announcement of the rule. "No prior administration, however, issued a final rule. With this achievement now complete, the (Flores agreement) will terminate by its own terms, and the Trump administration will continue to work for a better immigration system."
Citing Congress' inability or unwillingness to work on immigration reforms palatable to both parties, administration officials castigated the 20-day detention limit as a "magnet" that draws "more and more alien families to make the dangerous journey to our border."
The White House said border agents have arrested 432,838 families so far this fiscal year — up from 14,855 arrests in fiscal 2013. In the last three months, 184,000 families have been stopped at the southern border.