Proposed Rule Would Make Matters Worse for Immigrant Children Held in Detention – Comments Due Nov. 6

About a year ago, the Administration reversed longstanding immigration policy and started separating children from their parents at the US-Mexico border. Over just a few months, thousands of children were separated from their parents. The issue drew a lot of media attention, as medical and child welfare experts pointed out that research shows the Administration was exposing children to potentially irreparable harm.

The Administration responded with an Executive Order (EO) that purported to address the issue, but truthfully only made matters worse. Rather than ending the zero-tolerance policy that created the whole family separation problem to begin with, the EO sought legal authority from the courts to change the Flores Settlement, which requires children to be released without delay or temporarily held only in licensed facilities, and instead detain families indefinitely in secure, military encampments.

In June, the courts intervened, requiring the Administration to stop separating families and reunify separated children with their parents within 30 days. Many families have since been reunited, but hundreds of children remain separated from their families. In many cases, the parents have been deported while the children are still in detention facilities in the US. Rather than swiftly fixing the problem the Administration created, immigration experts and child advocates are doing the hard work to bring these families back together, and it will likely take months.

Meanwhile, the number of immigrant children in detention facilities has skyrocketed. Most of these children traveled to the US on their own from Central America. Here’s an excerpt from a recent New York Times report by Caitlin Dickerson on the disturbing trend:

“Population levels at federally contracted shelters for migrant children have quietly shot up more than fivefold since last summer, according to data obtained by The New York Times, reaching a total of 12,800 this month. There were 2,400 such children in custody in May 2017.

The huge increases, which have placed the federal shelter system near capacity, are due not to an influx of children entering the country, but a reduction in the number being released to live with families and other sponsors, the data collected by the Department of Health and Human Services suggests. Some of those who work in the migrant shelter network say the bottleneck is straining both the children and the system that cares for them.”

Detaining children – whether separated from their parents at the border or traveling alone – for long periods of time like this is a blatant violation of the Flores Settlement. As noted, the Flores Settlement requires children to be released from custody without delay, and when release is not possible, to be held in the least restrictive setting, typically a non-secure facility licensed by a child welfare entity. If children are detained with their parents in ICE family detention centers that do not meet this standard, they must be released within 20 days.

But rather than working to comply with the laws protecting the health and welfare of children, the Administration appears again determined to simply change them. On September 6, the Departments of Homeland Security (DHS) and Health and Human Services (HHS) issued a notice of proposed rulemaking (NPRM) on the detention of immigrant children. The NPRM would make numerous and significant changes to DHS and HHS regulations and policy and gut the Flores Settlement.

For example, under current law, children in custody can be released, in order of preference, to: a parent, a legal guardian, or an adult relative (sibling, aunt, uncle, or grandparent). However, under the NPRM, children in custody could only be released to a parent or legal guardian not in detention. This limitation on the eligible adult relatives to care for children will lead to more children in detention centers for longer periods of time – jeopardizing their health and well-being.

The NPRM would also allow children to be detained in family detention centers that are “self-licensed” by DHS rather than licensed by a state agency as Flores requires. In practice, this provision would allow the Administration to rubberstamp licensure documents in order to detain families for longer than is allowed under current law by avoiding the 20-day limit imposed when children are held in unlicensed family detention centers today.

In another attempt to extend family detention periods and undo other protections for children in detention, the NPRM would expand the definition of “emergency” and the additional flexibility that comes with such a designation. Under the new definition, an emergency is defined as an act or event “including, but not limited to, a natural disaster, facility fire, civil disturbance, or medical or public health concerns at one or more facilities” and when such an “emergency” is declared, the Administration would be able to not only delay the transfer of a child but also avoid compliance with any other provision of 8 CFR 236.3.

But perhaps the most disturbing part of this NPRM is that because the Administration falsely claims it is implementing the Flores Settlement – rather than undoing its protections – the Flores Settlement would terminate entirely 45 days after the rule is finalized. There is no doubt that the legal team behind the Flores Settlement will take this back to court, but in the meantime, the public has an opportunity to comment. And we’ve learned from recent Medicaid litigation that public comments matter – a lot. Comments are due November 6.

For more information about the Flores Settlement and this NPRM, visit the National Immigrant Justice Center and the Women’s Refugee Commission.

Kelly Whitener is an Associate Professor of the Practice at the Georgetown University McCourt School of Public Policy’s Center for Children and Families.