Legal leaders disapprove of immigrant children detention rules

High-ranking representatives of the legal community went public this week with their disapproval of rule changes regarding the detention of immigrant children proposed by the Departments of Homeland Security and Health and Human Services.

In September, the departments published proposed rule changes to how the government apprehends and detains minors who enter the country illegally. The new rules, according to a Homeland Security news release, codify the "relevant and substantive terms" of the Flores agreement, a 20-year-old settlement that sets conditions on the government's treatment of the children it covers, thereby rendering it moot.

According to the language of the 1997 agreement, the settlement terminates 45 days after publication of final regulations implementing its terms.

But letters submitted to the government by attorneys general from 18 states, the American Bar Association and a proposed amicus brief filed in federal court by 18 cities and counties say rather than codifying the Flores agreement, the government's proposal contradicts its fundamental elements.

In fact, the letter writers say, the new rules go against both the spirit and letter of the law as determined by the courts when the settlement was reached and in subsequent rulings by the 9th U.S. Circuit Court of Appeals.

"For decades, the Flores agreement has set the standard for how long children can be held in custody and the conditions of their detention," said California Attorney General Xavier Becerra in a public statement this week regarding his office's work to submit a letter on behalf of 18 attorneys general from around the nation.

"The Trump Administration's proposed rule would cruelly prolong children's confinement, knowing there is ample evidence demonstrating the lasting harm that results from this detention," he added.

In the September news release, the government said its rule changes would relieve the courts of the burden of immigration policy as the Flores case is still an active case in the Central District under U.S. District Judge Dolly M. Gee. Flores v. Sessions, 85-CV4544 (C.D. Cal., filed July 11, 1985).

U.S. Department of Homeland Security Secretary Kirstjen M. Nielsen

"Today, legal loopholes significantly hinder the department's ability to detain and promptly remove family units that have no legal basis to remain in the country," said Homeland Security Secretary Kirstjen M. Nielsen in a public statement when the revisions were first released. "This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress."

The settlement placed a five-day limit on detaining minors after which they have to be placed in licensed programs. In 2015, Gee extended the deadline to 20 days during times of "emergency" or "influx."

The regulations proposed by the government in September suggest children in the country illegally could be held indefinitely by amending a section on placement considerations.

The new regulations state, "If there is no appropriate licensed program immediately available ... and no one to whom" the Office of Refugee Resettlement may release the unaccompanied children, then they "may be placed in an ORR contracted facility, having separate accommodations for minors, or a state or county juvenile detention facility."

According to a letter submitted this week to Homeland Security by American Bar Association President Robert M. Carlson, the new language contradicts both the Flores agreement and ABA's recently updated custody standards. Those standards make clear, according to the submitted letter, "that a lack of available space cannot serve as a justification for placing children in secure detention facilities indefinitely."

As such, Carlson urged the government to withdraw its proposal and "instead work toward strengthening the framework of legal protections available for unaccompanied children, families, and other vulnerable asylum-seekers."

The Department of Homeland Security described the changes as necessary in the wake of the Homeland Security Act and the Trafficking Victims Protection Reauthorization Act of 2008, statutory chan ges made after the settlement was agreed to in 1997.

The government has made this argument before and was rebuffed by the 9th U.S. Circuit Court of Appeals.

In a 2017 unanimous affirmation of a district court's granting of the plaintiffs' motion to enforce the settlement, the late Judge Stephen Reinhardt wrote, "Not a single word in either statute indicates that Congress intended to supersede, terminate, or take away any right enjoyed by unaccompanied minors at the time of the acts' passage." Flores v. Sessions, 862 F.3d 863, 881 (9th Cir. 2017).

In a proposed amicus curiae brief filed with the judge overseeing the Flores matter, a coalition of 18 city attorneys and solicitors said the regulations plainly attempt to circumvent the court system entirely.

"The rules are an impermissible and troubling attempt to use the rulemaking process to flout court-mandated safeguards for the detention of immigrant children in federal custody as set forth in the Flores settlement agreement," Los Angeles City Attorney Michael N. Feuer wrote in the amicus brief, co-signed by attorneys from New York, Houston and 15 other cities and counties.

"Instead of being consistent with the terms of the FSA, the rules dispense wholesale with its most critical protections in favor of a new detention policy for which the departments identify no justification," he added. The Department of Homeland Security declined to comment beyond its initial press release in September, which said the adoption of regulations was long overdue.