What would the Regulations Do?

Children detained along with their parents would not be released in a timely manner. 

• Although there is no limit to the amount of time an adult can be detained while their case is heard, The Flores settlement requires the government to make a “continuous effort to release” children from immigration custody even if they were with their parents.
• The proposed regulations would hold parents and their children to the same restrictive standard for families who are subject to expedited removal but have expressed a fear of return to the country they fled. For families who arrive together, they could be detained for weeks, months, or years while their immigration case is pending.

Families could be detained in facilities without licensing approval. 

• The Flores settlement requires that children (housed alone or with their families) must be held only in facilities licensed by state or local governments.
• The proposed regulation would, according to the regulation summary: “create an alternative to the existing licensed program requirement for family residential centers, so that ICE may use appropriate facilities to detain family units together during their immigration proceedings.” This lets the government detain families with a later audit by a third party to ensure that they meet the baseline standards for housing children, which include proper physical care, food, clothing, routine medical and dental care, emergency care, educational services, recreation and leisure time, mental health services, and more.

The government is given broad “emergency” loopholes for not meeting standards of care. 

• Generally, Customs and Border Protection must transfer children to a facility for unaccompanied children (ORR) or for families (DHS) within 72 hours.
• Under the new regulation, the definitions of “influx” and “emergency” could be expanded to be interpreted very broadly and in those cases, the timing of those transfers could be delayed. Furthermore, the “emergency” definition means that any part of the regulation could be suspended – not just the transfer timeline. This includes the standards for care of children and families in immigration detention, release, judicial review, legal visits, and more.

The government can more easily revoke the legal protections for unaccompanied children. 

• Children who enter the U.S. without their parents are labeled “unaccompanied alien children” and get more legal protections than other children and adults: they are housed by the Office of Refugee Resettlement, many have access to attorneys, and they get a hearing before an immigration judge without having to pass an asylum screening interview first. Up until the Trump Administration, a child labeled as a “UAC” would continue to have the label and its protections, such as a less adversarial asylum interview rather than a full hearing before the immigration court.
• The regulation proposes that children lose their protected UAC status as soon as they turn 18 or are reunited with a parent or guardian. These protections should be expanded to all children – not removed from children who are able to leave custody and move in with a family or friend who can care for them.