ICE Issues a Proposed Rule to Keep Families Together, in Custody, Pending Immigration Rulings

By Susan Jones | September 12, 2018 | 9:01am EDT
On Sept. 7, the Immigration and Customs Enforcement agency (ICE) issued a proposed regulation that would make it easier for the government to detain adults along with their children. (Photo: Screen capture/ICE)

( - Following the outcry over family separation -- children being "ripped" from their parents' arms at the Southwest border -- the Trump administration is looking for a way to keep those family units together while they await the outcome of their immigration cases.

On Sept. 7, the Immigration and Customs Enforcement agency (ICE) issued a proposed regulation that would make it easier for the government to detain adults along with their children -- but even that family unity plan is controversial.

Sen. Jeff Merkley (D-Ore.) on Tuesday night accused the Trump administration of intending to "establish internment camps to lock up children behind barbed wire."


"So we're going from the horrendous policy of ripping children out of their parents' arms, and of course we're still trying to reunify all those families -- to a new strategy of building internment camps that would be funded through...I.C.E."

Merkley told MSNBC's Rachel Maddow he has obtained a document showing that the Department of Homeland Security is taking $10 million out of the FEMA (Federal Emergency Management Agency) budget and is transferring that $10 million to ICE to support detention centers where children could stay with their parents or legal guardians.

Until recently, the Trump administration was essentially arresting the adults, then putting their children in custody of centers run by the Health and Human Services Department.

Merkley and Maddow noted that the $10 million cut out of FEMA's budget happened at the start of hurricane season, and now, with all eyes on the approaching Hurricane Florence, they criticized the transfer:

"So $10 million comes out of FEMA when we're facing a hurricane season, knowing what happened last year," Merkley said. "And then look what we've had since, a hurricane just barely missed Hawaii; a tropical storm that almost became a hurricane hit Mississippi; and now we have this hurricane Florence bearing down on the Carolinas."

Merkley said he finds it "extraordinary" that the Trump administration would take money from FEMA's response and recovery budget to build what he calls "family internment camps."

"And we haven't done anything like that since World War II," Merkley said. "It absolutely comes from a dark and evil place in the heart of this administration. They're going from one strategy of inflicting trauma on children to a new strategy that they're trying to implement to inflict trauma on children, all to send, as Jeff sessions says, a message of deterrence to discourage people who are fleeing persecution from ever considering arriving on the shores of the United States of America."

(Merkley said much the same thing on CNN Wednesday morning.)

A FEMA spokesman confirmed that the money was transferred to ICE, but he said it did not go to immigration enforcement and it will not affect on hurricane response.

FEMA spokesman Tyler Houlton tweeted on Wednesday: "Under no circumstances was any disaster relief funding transferred from @fema to immigration enforcement efforts. This is a sorry attempt to push a false agenda at a time when the administration is focused on assisting millions on the East Coast facing a catastrophic disaster. The money in question — transferred to ICE from FEMA’s routine operating expenses — could not have been used for hurricane response due to appropriation limitations. DHS/FEMA stand fiscally and operationally ready to support current and future response and recovery needs."

ICE said its proposed regulation on the "Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children" will give the government a "third option" for dealing with families.

Right now, when the Department of Homeland Security/ICE apprehends an alien parent crossing over with a child, it may:

-- parole all family members into the United States with a promise to appear in court later;

-- detain the parent/legal guardian and either release the child to another parent/guardian or transfer the child to HHS custody to be treated as an unaccompanied alien child;

-- detain the family together by placing adults with their children in a family residential center.

But a court ruling -- the Flores Settlement Agreement -- requires the states to license family residential centers, and that has proved to be a problem, preventing the government from using the family detention option.

The regulation proposed by ICE "serves to clear the way for the sensible use of family residential centers when it is lawful and appropriate," the regulations says. "In particular, it would create a federal licensing process to resolve the current problem caused by a state-licensing requirement that is ill-suited to family detention..."

According to ICE, "This rule would allow for detention at FRCs (Family Residential Centers) for the pendency of immigration order to permit families to be detained together and parents not be separated from their children."

As ICE noted, "It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA (Immigration and Nationality Act), but also due to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm. The expectation that adults with juveniles will remain in the United States outside of immigration detention may incentivize these risky practices."

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