Originally from El Salvador, seven-year-old Andy (second from right) and mother, Arely (right), were separated upon entering the United States. They were reunited at Baltimore-Washington International Airport on July 23. | Win McNamee/Getty Images Trump family detention plan challenges court settlement

The Trump administration will forge ahead with a plan to keep migrant families detained together through the course of immigration proceedings, according to a Federal Register announcement Thursday.

The administration will publish a notice of proposed rulemaking that sets standards for the care of families, a step that may terminate the 1997 Flores settlement agreement, which governs the treatment of unaccompanied minors in federal custody.


"Legal loopholes significantly hinder the Department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country," Homeland Security Secretary Kirstjen Nielsen said in a written statement. "This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress."

The proposed regulation would tackle a key sticking point for detaining families together: a requirement that facilities holding migrant children maintain a state license for such a purpose. While the proposal calls the licensing mandate “sensible,” it argues that the federal government should be able to issue an equivalent license.

“The goal is to provide materially identical assurances about the conditions of such facilities ... and in turn to allow families to remain together during their immigration proceedings,” the notice states.

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The proposed rule also challenges a time limit that Flores placed on the detention of minors. The rule "may result in extending detention of some minors and their accompanied parent or legal guardian in [family detention centers] beyond 20 days," the DHS document said. But the judge overseeing the Flores agreement — Los Angeles-based U.S. District Court Judge Dolly Gee — has indicated already that minors may be held longer than 20 days if the government secures their parents' consent.

The regulatory move won’t lead to any immediate change in the custody and care of migrant families or unaccompanied children, and likely will be subject to months of scrutiny during the regulatory process.

In addition, the proposal could face challenges in court. In July, Gee rejected a Trump administration request to detain families together. The judge specifically cited the administration’s desire to place children in unlicensed facilities, a snag the proposed regulation aims to resolve.

If implemented, such a regulation, coupled with adequate funding, could allow President Donald Trump to reinstate a “zero tolerance” enforcement policy toward families arriving at the U.S.-Mexico border.

Under the policy, which was fully put into effect in early May, DHS referred all suspected border crossers — including families and asylum seekers — for federal prosecution. As parents faced prosecution, thousands of children were rendered “unaccompanied minors” and placed in federal facilities around the country.

Amid widespread public backlash over family separations, Trump issued an executive order in June that ordered families be detained together. However, the administration lacked the legal authority and resources to detain children with their parents for extended periods, which meant Trump’s order effectively neutralized “zero tolerance” for families.

The notice of proposed rulemaking will be issued Friday by DHS and HHS.

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