Houston Chronicle
By Lomi Kriel
September 09, 2018
President Donald Trump’s administration is trying to upend a landmark 21-year-old federal settlement protecting immigrant children in detention, a move that would likely expand the number of such facilities as the government seeks to imprison migrant families until they are deported or gain asylum.
The proposed 203-page regulation, published Friday in the Federal Register, would replace the 1997 Flores Settlement Agreement, which for decades has governed the rights of immigrant minors in detention. Advocates say legal protections for children would be slashed, while the administration argued it would close a “loophole” that encourages families to come here illegally.
The move is all but certain to result in litigation and could end up in front of the Supreme Court before the prolonged detention of immigrant children is permitted. The regulation must also still undergo 60 days of public comment, where objections will be raised.
U.S. District Judge Dolly M. Gee, a Los Angeles judge overseeing the Flores agreement, has repeatedly held that minors cannot be imprisoned for longer than 20 days, and in July once again denied a Justice Department request to ease the settlement terms.
Her consistent rulings have forced both Trump and President Barack Obama’s administrations to free many migrant families to pursue their cases in the backlogged civil immigration courts — a process that can take months. Critics say immigrants do not always show up at their hearings, and Trump campaigned on ending the practice of so-called “catch and release.”
“Legal loopholes significantly hinder the Department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country,” Homeland Security Secretary Kirstjen Nielsen said in a statement. “This rule addresses one of the primary pull factors for illegal immigration.”
The announcement Friday comes just three months after Trump abruptly ended his controversial policy of separating thousands of immigrant families at the southern border, which was widely regarded as one of his administration’s biggest debacles and spurred widespread national fury.
White House officials have characterized the practice, in which parents were imprisoned and their children placed in federal foster care, as a consequence of the Flores Settlement because the government was not able to detain families together.
A San Diego federal judge this summer ordered the government to immediately reunify families. But Justice Department attorneys said in federal filings this week that two months after the deadline, more than 300 children remain in custody and have still not been reunited with their parents, many of whom were deported and the government has been unable to find.
“Rather than focus on reuniting children with their families, the administration is now proposing changes to hold children indefinitely,” said Rev. John L. McCullough, president of Church World Service, a national refugee resettlement group. “Replacing family separation with family incarceration is cruel, and will only subject children to more trauma and abuse.”
’20-year step backwards’
Jennifer Nagda, a policy director at the Young Center for Immigrant Children’s Rights, a national nonprofit, said the proposed regulations represent a “20-year step backwards.”
The fight about the rights of children in immigrant detention began in the 1980s after a 15-year-old Salvadoran girl fleeing civil war came to represent the plight of many detained minors. She was strip searched every day and housed with adult men while in government custody, forcing the 1985 class action lawsuit bearing her name.
“The Flores Settlement exists because there were real concerns about the safety of kids in detention,” said Denise Gilman, who directs the University of Texas Law School Immigration Clinic in Austin and has been involved in related litigation. “The administration is trying to get around protections that were set up as a result.”
The issue has often taken center stage in Texas. In 2009, the Obama administration shuttered what at the time was the nation’s biggest family detention facility, the T. Don Hutto prison in Taylor. Complaints about poor treatment sparked an American Civil Liberties Union lawsuit in 2007 that lead to improved conditions and the release of many parents and children. The facility now holds immigrant adults.
After tens of thousands of Central American families began streaming across the Texas border in 2014, the Obama administration opened two new family detention facilities in Karnes and Dilley, which are both outside of San Antonio. Together with a smaller center in Pennsylvania that is usually reserved for fathers and children, the three can hold about 3,000 immigrants at a time and are typically at capacity.
In July alone, nearly 9,300 immigrant families and 4,000 unaccompanied children crossed the southern border, according to the most recent federal statistics available.
Poor treatment record in detention
The Trump administration has sought more immigrant detention space, including housing them on military bases, but is constrained by the settlement.
In addition to limiting the length of time children can be in detention, it also orders them to be held in the least restrictive setting possible, and in facilities that are licensed by the state. The issue is under litigation in Texas because the state government has said it cannot license the two family detention facilities here as it does with regular child care centers.
State courts have so far agreed, holding that the centers are more like juvenile detention facilities because they are secured and children cannot move freely, Gilman said.
Under the proposed regulations, the federal government would license its own detention centers, which advocates found particularly concerning given what they said was an already poor treatment record of children in custody.
Last month, the mother of a Guatemalan toddler who died after being released from the Dilley facility in May filed a notice of a claim against the government, informing officials that she could seek $40 million in damages.
According to the letter sent by her pro bono lawyer, Stanton Jones, she said the girl became sick and received negligent medical care while at the detention center.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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