The Trump administration wants to bypass a court settlement that limits the time migrant children may be held in detention to 20 days.
In a proposal to be published Friday, the Departments of Homeland Security (DHS) and Health and Human Services (HHS) say they will supplant terms of the 1997 Flores agreement with new regulations that would "satisfy the basic purpose" of Flores.
The departments say they will ensure that migrant children in government custody will be "treated with dignity, respect and special concern for their particular vulnerability as minors." However, they add that "the proposed rule may result in extending detention of some minors, and their accompanying parent or legal guardian."
How long migrant children may be detained is indeterminate.
"ICE (Immigration and Customs Enforcement) is unable to estimate how long detention would be extended for some categories of minors and their accompanying adults," the proposal said.
The Flores settlement agreement has been an impediment to the administration of U.S. President Donald Trump for some time. The administration sees the 20-day rule as a legal loophole that facilitates illegal immigration because in lieu of detention, migrant families are released into the U.S.
"While statistics specific to family units have not been compiled, the reality is that a significant number of aliens who are not in detention either fail to appear at the required proceedings or never actually seek asylum relief, thus remaining illegally in the United States," the proposed rule reads.
"Today, 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," DHS Secretary Kristjen Nielsen said in a 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 proposal is probably going to be challenged in the California court of U.S. District Court Judge Dolly Gee who oversees the Flores agreement and has so far resisted attempts to change it.
The 21-year-old Flores Settlement stemmed from a 1985 court case that claimed federal detention was damaging to a migrant child.
The public has 60 days to comment on the proposed rules, followed by a 45-day period in which lawyers who negotiated the original settlement can challenge the government's move in court.