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Trump Administration Finalizes Regulation to Indefinitely Detain More Immigrant Children With Less Accountability

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On the heels of multiple reports of horrific conditions in DHS detention and just after an appellate court’s ruling against the federal government who vigorously argued that edible food, clean water, and basic hygiene items are not required for safe and sanitary detention conditions, the Trump administration announced the finalization of a regulation proposed last fall that would allow DHS to indefinitely detain children under weaker standards of care and less oversight. Otherwise known as the “Flores rule,” the regulation would allow DHS to greatly expand family detention with less accountability and transparency than exists even today with detention conditions already so poor.    

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “This regulation is being finalized after multiple government, media, and eyewitness reports have shown that DHS has failed to safely handle the short-term detention of children in their custody, let-alone long-term, indefinite detention that would result from this regulation. Because the regulation allows DHS to set the standards for conditions and essentially self-review, there will be little transparency and accountability to ensure children are appropriately cared for. Don’t forget – this is the same administration that vigorously argued all the way to a court of appeals that soap, toothbrushes, clean water, and blankets are not necessary for safe and sanitary detention of children. With the availability of more effective, cost-efficient, and humane alternatives, this regulation makes no sense, especially given the plethora of reports on the psychological harm of detention of children, even in family detention.”

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “Decades ago, when the Flores agreement set the nationwide policy for the detention, release and treatment of minors detained by immigration authorities, who would have imagined that in 2019 a federal appellate court would actually have to rule that Flores guarantees detained migrant children eat enough edible food, drink clean water, are housed in hygienic facilities, have soap and toothpaste and are not sleep deprived? The Trump administration itself stands as Exhibit A as to why Flores exists in the first place–to ensure children are not abused by the government while detained by immigration authorities. The Trump administration’s cruel and relentless neglect and abuse of migrant children in ICE detention prove, beyond any doubt, that the Flores protections have never been more critical than they are today.  Simply put, the Trump administration’s new Flores rule is an ugly scheme to strip the critical protections which govern the detention, release, and treatment of minors detained by CBP and ICE.” 

Even Under Existing Legal Standards, Trump Administration Has Failed to Protect Children in DHS Custody 

Over the last few months, it has become extremely clear that DHS has been incapable of handling increasing numbers of children in detention in a safe and secure manner, even under existing standards.  

The DHS Inspector General (IG) — the internal government watchdog for DHS — has published nine reports and management alerts over the last two years and another unpublished internal memo that shows a pattern and practice of horrific conditions for children and adults in immigration detention.

Moreover, on a recent tour by Members of Congress of two border detention facilities, Rep. Joaquin Castro said, “One of the women said she was told by an agent to drink water out of the toilet.” Some women told the Congressional delegation that “they had been detained for 50 days and others had been separated from their children.” This tour by the Congressional delegation came at the same time that ProPublica revealed the existence of a Border Patrol Facebook group where “agents joked about the deaths of migrants, discussed throwing burritos at Latino members of Congress visiting a detention facility…and posted a vulgar illustration” of Rep. Alexandria Ocasio-Cortez.

As confirmed by DHS, not a single child has died in the custody of Customs and Border Protection in more than a decade until recently with at least seven children dying as a result of policies and conditions at border detention facilities under the Trump administration.  

Trump Administration Flores Rule Would Make a Bad Situation Worse

Current conditions in detention are governed by statute, regulations, standards, and decisions and settlements through litigation, including the Flores Settlement Agreement. As stated in recent Congressional testimony by Columbia Law Professor Elora Mukherjee, “The legal framework protecting children in federal immigration custody recognizes the particular vulnerability of youth and requires the government to release children expeditiously to sponsors and hold them in the least restrictive environment if detention is necessary for any period of time,…[in a] non-secure licensed facility.” 

The new Flores rule severely weakens these humanitarian protections by:

  • Allowing DHS to indefinitely detain children with parents in family detention centers;
  • Eliminating the Flores Settlement Agreement state licensing requirement that ensures an extra layer of accountability by states;
  • Allowing DHS to inspect itself and through hired outside contractors despite DHS Inspector General reports that show this approach has multiple flaws;
  • Authorizing DHS to set standards of care at a time when the Trump administration vociferously argued in court that safe and sanitary detention conditions do not include toothbrushes, soap, towels, and blankets.  

Effective, Cost-efficient, Humane Alternative

The effective, cost-efficient, and humane alternative is to release children to be with their families under case management programs run by community refugee and migrant groups that have attorneys and ensure compliance with court hearings and asylum applications.  

Contrary to statements made by the DHS Acting Secretary, a report by Syracuse University’s TRAC confirmed that the vast majority of asylum seeking families, when released from detention, show up for immigration hearings. “[A]lmost six out of every seven families released from custody had shown up for their initial court hearing…For those who are represented, more than 99 percent had appeared at every hearing held.” With this data, it is clear that there is no reason to detain a family seeking asylum, especially if they have access to counsel.  

Moreover, the alternative to detention is not only effective, it is cost-efficient for the government. According to the 2018 ICE budget justification, it costs $133.99 per day to hold an adult immigrant in detention and $319.37 for an individual in family detention, whereas ATDs only cost an average of $4.50 per day. A 2014 Government Accountability Office (GAO) study found that the ATD daily rate was less than 7% of the daily cost in detention. And these programs work to ensure compliance. ICE’s now terminated Family Case Management Program (FCMP) had compliance rates of 99% with immigration requirements such as court hearings and immigration appointments (including at least a dozen families who were ultimately deported), at a cost of only $36 per day per family.