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White House effort to change "20 day rule" for migrant detention faces tough odds, lawyers say

Trump looks to toughen immigration policy

Immigration officials in President Donald Trump's administration, and before that the Obama administration, have for years argued against a court-enforced immigration detention standard known as the "20 day rule." The rule says that immigrant children, whether they arrived with family or are unaccompanied, cannot be held in detention for more than 20 days.

As the government struggles with the latest surge of immigrants detained at the border, the White House is gearing up to challenge the rule again. But lawyers involved in the case, and on the ground at detention centers, say there's no reason to expect a federal judge to suddenly change course on the issue.

The rule is a result of the Flores settlement, a 1997 agreement stemming from the Supreme Court case Flores v. Reno, which set the nation's rules for the treatment of immigrant minors in federal custody. In the 22 years since then, courts have repeatedly revisited the settlement in a back-and-forth between immigration attorneys and the federal government, arguing about the conditions under which immigrant children are held.

Peter Schey, the lead attorney for the team that oversees the court order and inspects facilities for migrant children, tells CBS News the government would need to ask U.S. District Judge Dolly Gee, of the Central District of California, to set a new standard.

"They cannot ignore the settlement terms that require that from the time of apprehension they make and record continuous efforts aimed at the expeditious release of minors," said Schey, who is executive director of the Center for Human Rights and Constitutional Law. In other words, the point of the rule is that kids can't be detained for a long time, and the government has to try to release them as quickly as possible.

Gee first ruled on the subject in 2015, when she ordered the government to release about 1,700 detained families that were not considered to be flight risks. Lawyers for the government had previously advised Gee that it took an average of 20 days for officials to determine if asylum seekers had credible fear of facing violence in their home countries, leading Gee to write that detaining children for 20 days "may fall within the parameters" of the Flores Agreement.

A federal appeals court upheld much of Gee's decision a year later. She has since twice rejected motions to alter or drop the ruling.

Since then, the government has been required to release families held in detention after 20 days, as they await their next immigration court hearing. Unaccompanied children are transferred to the care of the U.S. Department of Health and Human Services, which holds them in shelters until sponsors or foster care can be arranged.  

The most recent effort to upend the rule came on June 21, 2018, the day after Mr. Trump signed an executive order ending his administration's controversial "zero tolerance" policy, which led officials to separate migrant children from their parents. The government asked Gee to allow it to detain children and their families for the duration of their immigration court cases.

Less than three weeks later, Gee rejected the request. In her ruling, she said the government was trying to "light a match to the Flores Agreement," and called it a "cynical attempt" to get around Congress.

The agreement can be traced back to a 1985 case brought by Schey's team on behalf of Jenny Lisette Flores, a 15-year-old girl who was held in brutal conditions after fleeing the civil war in El Salvador. Housed with adult men and women in a barbed wire-surrounded motel that had been converted into a detainment center, the teen was subject to regular strip searches. Ultimately, her case would lead to the country's first framework governing the treatment and housing of migrant teens.

And the 20 day standard is important for children's health, said Katie Shepherd, national advocacy counsel for the Immigration Justice Campaign at the nonprofit American Immigration Council. She noted that the detention centers where children and families are first taken to are not licensed child care facilities.

"If you are in the detention center in Dilley or Karnes (Texas), and you look around you, a lot of the children are sick. They're visibly ill," Shepherd said. "They have fevers, they're coughing, they have runny noses. A lot of them, their parents report they start to regress in terms of their behavior. They start to lash out against other children."

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