Detention of Families Likely to Increase as Regulations Replace Flores Settlement

On September 7, 2018 the Trump Administration published a draft of new regulations concerning the detention of families which, if finalized, will increase family detention and eliminate protections for children who arrive with their parents.

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.

What is the Flores Settlement?

In the early 1980s, advocates concerned about the treatment of children in immigration custody sued the federal government to improve conditions of confinement and release policies. The lawsuit was settled in 1997, and required the government to:

  • Minimize the detention of immigrant and refugee children as much as possible;
  • Release children without unnecessary delay to (in order of preference)  parents, other adult relatives, or licensed programs;
  • Place children in the “least restrictive” setting appropriate to their age and special needs; and
  • Implement standards relating to the care and treatment of detained children, treating them with dignity, respect, and due regard for their vulnerabilities as children.

The government agreed to continue the agreement past its sunset date until the time it could publish regulations implementing the Settlement.

Additional Reading

Trump’s new plan to detain immigrant families indefinitely, explained (Vox)

Trump Administration Moves to Sidestep Restrictions on Detaining Migrant Children (New York Times)

Flores agreement: Myth v. Fact (KIND)

Brief Analysis of Proposed DHS/HHS Rule on Detention of Children (Tahirih Justice Center)

Don’t Let Migrant Kids Rot: If the Trump administration gets its way, the government will be able to detain the children indefinitely (NYT Op-ed)

Trump administration considers family separation option as border arrests soar (Politico, 10/12/18)

DHS is reportedly considering a “binary choice” proposal that would force parents to choose between being detained with their children throughout removal proceedings or be separated from their child.

HILSC Partner Statements

Kids in Need of Defense (KIND)

We are also very concerned that the proposed rule allows the government to potentially re-evaluate and potentially re-determine a child’s status as an unaccompanied child even after a child’s case has begun—a move that could strip children of critical child-appropriate protections and procedures, and frustrate access to due process and humanitarian protection.

The Young Center

If the administration implements these proposed rules, children and families will face indefinite immigration detention. This is unacceptable. Even brief periods of detention can cause psychological trauma and induce long-term mental health risks for children.

American Immigration Lawyers Association

The proposed changes flout a federal court order ruling that the government cannot detain people for the purpose of deterrence. But beyond that, they threaten the safety and well being of children supposedly under the care of the federal government. For more than twenty years, administrations have been bound by the Flores national standards regarding the detention, release, and treatment of children. Stripping away these fundamental humanitarian protections will only benefit private prisons and waste billions in taxpayer money to jail children and their parents.

Advocacy on Flores Notice

Make a public comment

HILSC has outlined how to write a comment on the proposed Flores regulations, along with examples and data to include in your comment. Take a few minutes to read our tips and write your comment today!

Submit a public comment before November 6!


Other forms of Advocacy

Many of you have been asking how you can get involved and support advocacy around the Flores proposed regulations.  Here are a few resources and opportunities to get involved:

Sign the following petitions!

Listen to Immigration Justice Campaign’s Webinar on the Proposed Flores Regulations and Family Detention

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