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The National Immigrant Justice Center was among more than 60,000 organizations and individuals that submitted comments to the Federal Register this week opposing new rules proposed by the Department of Homeland Security (DHS) and Department of Health and Human Services (HHS) that would destroy children’s rights protections that have been in place for nearly 20 years under the Flores Settlement Agreement. These comments put the Trump administration on notice that Americans continue to defend the rights of migrant children, just as we did during the family separation crisis last summer.

The Flores settlement stands as a critical check on the government’s treatment of immigrant children. The government’s proposed rule would terminate the settlement and replace it with anemic protections that flaunt child welfare norms at every turn.

NIJC’s comment in opposition to the rule focused on 11 areas in which the proposed rule fails to provide even minimal personal welfare and due process safeguards for immigrant children and those who care for them. Read more about those concerns below, or download our 43-page comment for our full legal analysis. Download our 43-page comment 

1) DHS and HHS rely on the failed and unethical belief that deterrence policies will stop people fleeing persecution and danger from coming to the United States in search of safety.

The rhetoric in the proposed rules is further evidence that the administration’s border policies are largely aimed at deterring migration to the United States, including asylum seekers. Such explicit use of deterrence as a governing strategy is not only a cruel rejection of our commitment to provide shelter to those in need; it also contravenes our domestic and international legal obligations. Furthermore, studies and data going back to the Obama administration have shown that detention and other punitive measures are not even effective at achieving the administration’s goal of deterring families from coming to the United States to seek protection. At NIJC, we know this from the stories of the hundreds of families we’ve represented who have fled extreme violence in Central America and other parts of the world.

Diana* fled Honduras with her young daughter to seek protection in the United States in November 2015, days after she received a written death threat from gang members vowing to kill her and her daughter. Diana and her daughter were granted asylum in February 2017.

Isabel fled El Salvador with her young son in June 2016; about a month after she and her son were attacked on the street by MS-13 gang members who restrained her son while they beat her and threatened to kill the family. They were granted asylum in January 2018.

2) DHS and HHS undermine the fundamental purpose of the Flores Settlement Agreement by permitting DHS to “self-license” detention centers for children and families, and to hold children in unlicensed “secure” detention centers for indefinite periods.

The core principle and requirement of the current Flores agreement is that migrant children taken into detention should be released from detention as quickly as possible. Children held longer must only be held in settings that are licensed by a state child welfare agency for the longer-term housing and care of children. The proposed regulations allow DHS to circumvent these checks on indefinite detention by permitting the federal government to license its own facilities, and creating significantly more leeway for DHS and HHS to hold children in unlicensed and so-called “secure” facilities, such as the recently opened tent camp in Tornillo, Texas, which often resemble or literally are jails or prisons.

DHS has faced myriad licensing challenges at its existing family detention centers, demonstrating the crucial role that independent licensing and monitoring can play in identifying and addressing inappropriate conditions for children. The T. Don Hutto Center in Texas closed after three years of operation due to multiple lawsuits related to the center’s poor conditions. In January 2016, the Pennsylvania Department of Human Services revoked the child care license of the Berks County Residential Center because DHS was found to be using its license inappropriately.

3) DHS’s proposed rule ignores the agency’s abominable lack of oversight of its detention facilities, putting children’s health and safety at grave risk.

The rule proposes that DHS should be allowed to monitor the conditions of its own family prisons, an inspections process that would be much weaker than that provided under the Flores settlement. DHS’s record of oversight, transparency, and accountability with regard to immigration detention facilities is abysmal—and it puts lives at risk.

Two medical doctors who served as subject matter experts for the DHS Office of Civil Rights and Civil Liberties on family detention centers recently reported to Congress that their investigations “frequently revealed serious compliance issues resulting in harm to children.” The doctors stated that family detention centers “still have significant deficiencies that violate federal detention standards,” including repeated violations of the standards for medical staffing, clinic space, timely access to medical care, and language access, and gave detailed examples of cases when children have been harmed by inadequate medical care.”

4) DHS proposes new restrictions on the release of children from its custody, a cruel idea that contradicts decades of previous government practice and policy.

DHS proposes to amend its existing regulations so that children may only be released to parents or legal guardians, or may not be released at all. The rules would eliminate sponsorship options for children who previously would have been released to another relative or caregiver, leading to longer detention or placement in long-term foster care. Children trapped alone in long-term detention would be more likely to give up their immigration cases and return home to the dangers they fled.

5) DHS and HHS propose expanded exemptions that would allow the federal government to suspend children’s most basic protections.

The proposed rules expand the terms under which DHS and HHS would be permitted to invoke a state of “emergency” or an “influx” and thus suspend essentially any and all children’s protections, including access to meals and medical care.

This expansion of conditions under which DHS and HHS may suspend protections is especially worrying given the agencies' recent record of failure in providing emergency care for children held in non-licensed immigration prisons. A 19-month-old toddler died due a respiratory infection that went untreated and a 5-year-old nearly died due to an untreated ruptured appendix, both shortly after being released from DHS’s South Texas Family Residential Center in Dilley, Texas.

6) HHS seeks to replace clear, affirmative protections for unaccompanied children with unaccountable flexibility that would put unaccompanied children at risk.

The proposed rule provides new flexibility for HHS to hold children for indefinite periods in “secure” contracted facilities, before placing them in programs licensed to care for children.

Currently, thousands of children are being held in large-scale facilities, including in Tornillo, Texas, and Homestead, Florida, that are not licensed for the residential care of children and that pose particular consequences for child survivors of trauma and violence, given the facilities’ remote location, size, and limited access to critical support services. These “influx” shelters, intended to be temporary, may in reality hold children for months. In recent weeks, thousands of children have been abruptly transferred from licensed programs to these remote facilities, purportedly to make room for other children as they await release to sponsors. Hurried transitions with little warning further destabilize children whose trust has in many cases already been deeply eroded by prior abuse, violence, and threats to their lives. Large-scale facilities, which lack schooling and have limited mental health and legal services, compound the emotional and psychological trauma facing unaccompanied children and increase the risk their needs will be inadequately addressed. Yet, currently, children are being held in Tornillo for an average of 20 days. Regulations expanding the ability of ORR to use such facilities more broadly are not only contrary to the best interests of children but to the very aims of Flores.

7) HHS and DHS seek to demonize and criminalize immigrant youth to even further expand the use of “secure” unlicensed detention facilities to hold children.

The proposed rules significantly alter the criteria for what criminal offenses and behavior could keep a child in a secure detention facility. The proposed rule eliminates exemptions such as joyriding, shoplifting, and disturbing the peace and expands the definition of “disruptive conduct” that could result in a child being removed from a licensed childcare facility and put into a secure unlicensed one.

David is a young old boy who was forcibly separated at the border from his adult brother who is his legal guardian. The separation was extremely difficult for David and since being placed into HHS custody, David has had numerous Significant Incident Reports filed after he has acted out, likely due to his separation from his brother. David wishes to take voluntary departure and return to his home country to reunite with his brother. Had he been “stepped up” as a result of his behavior, as HHS and DHS’s proposed rules seek to do in such situations in the future, his reunification with his brother may have been unnecessarily delayed.

Aly fled his home country in West Africa when he was 16 years old because he feared his family would kill him after they learned he was gay. In HHS custody, Aly struggled with mental health issues, expressed thoughts of self-harm and refused to cooperate with shelter policies. Recognizing Aly’s behavior was connected to his prior trauma and poor mental health, shelter staff worked closely with him and instead of stepping him up to a secure facility, were able to refer him to a program that provided him with more individualized care so he could focus on his asylum case.

8) HHS proposes to increase already prohibitively high barriers for unaccompanied children to be released to potential sponsors.

The current Flores settlement establishes a “general policy favoring release”; if detention is not required to ensure a minor’s safety or compliance with immigration proceedings, HHS must release an unaccompanied child to an approved sponsor without “unnecessary delay.” This requirement is grounded in the recognition that children need a close and supportive relationship with a caregiver in order to thrive. The proposed rule broadens HHS’s authority to grant or deny family reunification, and codifies that HHS must collect and share potential sponsors’ immigration status information with DHS, which may use it for immigration enforcement purposes.

9) HHS’s proposed rule would permit the agency to be jailer and judge for children in its custody.

HHS proposes to force children to have their requests for release or bond go before an HHS administrative officer, rather than an immigration judge. Allowing the custodian to adjudicate custody decisions is a brash violation of the Flores settlement and children’s due process protections.

10) DHS and HHS seek to arbitrarily strip statutory procedural protections for unaccompanied children seeking legal status in the United States.

For more than 15 years, federal law has uniquely defined and afforded protections to children who arrive in the United States without parents or guardians, in recognition of their particular and enduring vulnerability. Status as an unaccompanied child is not merely a technical definition. It brings with it critical substantive and procedural protections tailored to ensure the efficiency of our immigration system as well as the safety and well-being of children and their ability to meaningfully participate in immigration proceedings that determine their futures. The proposed regulations, however, would allow DHS and HHS to strip these protections from children, making them even more vulnerable and thwarting congressional intent under laws including the Homeland Security Act and the Trafficking Victims Protection Reauthorization Act.

11) DHS’s and HHS’s proposals will come at a high cost to taxpayers.

The government skirted its obligation to estimate the cost burden these proposed rules will place on taxpayers. Yet independent analysts estimate that the costs to DHS from the proposed rules will — over a decade — stretch to $201 million per year at the low end, and nearly $1.3 billion per year at the high end. In the fiscal year 2019 Congressional Budget Justification, DHS’s Immigration and Customs Enforcement (ICE) estimated the daily cost of one family detention bed at $318.79. Alternative forms of custody, which the rule does not even acknowledge as options, cost as little as $4 or $5 per day. 

It is difficult to overstate the fiscal and human cost of the expansion of the family detention system called for under DHS and HHS’s proposed rules. With tens of thousands of Americans speaking out to defend migrant children and families, and oppose these rules, we hope the Trump administration will take heed.

*Names of NIJC clients have been changed to protect their privacy.

Diane Eikenberry is NIJC’s consultant for the Defend Flores campaign and former associate director of policy.

Tara Tidwell Cullen is NIJC’s director of communications.