New Rule Nixes Protections for Detained Immigrant Children, Harming Their Health

Editor’s Note, 10/15/19: Several federal courts have issued nationwide injunctions blocking implementation of the proposed changes to the public charge rule. We will update any further developments.

Last September, the Departments of Homeland Security (DHS) and Health and Human Services (HHS) released a notice of proposed rulemaking on the detention of immigrant children. The Administration falsely described the notice as “implementing” the Flores settlement agreement (see Flores v. Reno), which governs the circumstances under which immigrant children can be temporarily detained. In reality, the NPRM gutted Flores by wiping out the protections afforded to immigrant children and youth. Last week, DHS and HHS finalized the rule. Like the proposed version, the final version guts the protections put in place by Flores while purporting to implement it.

After a series of lawsuits in the 1980s, Flores required that children be released from custody without delay (preferably to a parent or family member). While temporarily detained (for no more than 20 days), children must be held in non-secure facilities licensed by the state, typically a child welfare agency. Under the final rule, children would be allowed to be detained indefinitely, including in secure, prison-like facilities that are not licensed by the state but rather subject to a self-licensing scheme.

The new rule is slated to go into effect October 22, 2019, but the courts may stop it. Attorneys general from 19 states and D.C. have already filed a lawsuit, which will go before federal Judge Dolly Gee who oversees Flores. Last year, Judge Gee blocked the Administration’s attempt to extend the allowable duration of family detention, and she may do so again. Say Ahhh! readers interested in following this topic closely should tune in to Kids in Need of Defense and the Women’s Refugee Commission as the details unfold.

But I’d like to make a broader point – this rule is harmful to child health and it is being done purposefully. Child health experts from the American Academy of Pediatrics have visited some of these detention facilities and seen first-hand how children are being treated. They issued a statement opposing the rule, that reads in part:

“Detention is no place for a child. Pediatricians have visited these centers, and what we saw was shocking and devastating to anyone who cares for children. Children are held in metal cages with fencing extending from floor to ceiling. They sleep on cold, concrete floors beneath thin Mylar blankets. Harsh overhead lights remain on 24-7. They have no access to pediatricians. They receive food that is often not palatable. Children don’t have regular access to showers, and must use toilets that are in semi-public locations. These conditions are commonplace for children detained in DHS-run facilities, which is why the agency is not equipped to detain children for even longer periods of time.”

The conditions of these facilities are horrifying and the consequences could last a lifetime. It is commonsense that children need the love and protection of caring adults in a safe community to grow and thrive. It is also supported by brain science: Exposure to conditions like these elevates stress hormones in the brain and can lead to life-long physical and mental health problems.

Sadly, this is all part of a purposeful agenda, an agenda that is hateful and harmful toward immigrants. In the span of less than two weeks, the Administration finalized the public charge rule, finalized this Flores rule, and issued complicated guidance on “sponsor deeming” and Medicaid/CHIP eligibility (rules that govern how income and resources of sponsors of certain immigrants must be counted when determining immigrant eligibility for Medicaid/CHIP). All of these actions could be fairly described as anti-immigrant. If implemented, the public charge rule will make it harder for lawfully residing immigrants to obtain permanent status and it will have spill-over effects on citizen children in immigrant families. The Flores rule will make it harder for immigrant children and youth to get the health care and other supportive services they need to recover from the trauma they’ve endured. The new guidance on sponsor deeming will make it harder for eligible families to enroll in Medicaid/CHIP and see a doctor or fill a prescription.

The uninsured rate for children went up in 2017 for the first time in almost a decade. In 2018, we saw historic declines in Medicaid/CHIP enrollment. This fall, we’ll see whether the child uninsured rate has continued to go in the wrong direction. There is so much that could be done to improve the health and wellbeing of children rather than continuing on this path to designate only some children as worthy of our collective care.

Kelly Whitener
Kelly Whitener is an Associate Professor of the Practice at the Center for Children and Families