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Why the Trump Administration’s Proposed Flores Regulation is Unacceptable and Demands a Vociferous Challenge

 

In spite of mounting cases of harm and abuse of children in immigration detention, the Trump administration formally proposed a regulation last week to indefinitely detain children under weaker standards and conditions than currently exist.  The regulation, if finalized, would replace the Flores Settlement Agreement (FSA) which protects children from prolonged detention and inhumane detention conditions.  This is the administration’s latest attempt to use detention as a form of deterrence in spite of evidence that it does not work to deter asylum-seekers and in spite of the availability of more effective, cost-efficient, and humane alternatives.

From Family Separation to Indefinite and Inhumane Family Detention

After more than a year of an informal policy of forcibly separating families, the Trump administration implemented a formal family separation policy earlier this summer. The result: they separated almost 3,000 children from their parents with no system to eventually reunite them; prosecuted parents for misdemeanors and held them in detention; and deported several hundred parents with no plan for reunification.  This disastrous policy finally came to an end due to unprecedented public opposition, combined with a court order that slapped down the administration and demanded reunification of already separated families.  

Instead of learning from this mistake, the Trump administration has vigorously engaged in multiple efforts to transition from a family separation strategy to one based on indefinite family detention.

According to the New Yorker:

Since the middle of July, a group of some twenty government officials has been gathering each week…to discuss what the Trump Administration should do in the aftermath of the President’s failed zero-tolerance policy….The main focus…has been to “map out” how the government can detain asylum seekers as they wait for a hearing before an immigration judge, which can take several months….”

Furthermore, despite opposition from retired generals and flag officers, press reports indicate  the Department of Defense is working on plans to detain 20,000 migrant children at military facilities.  In addition, ICE issued a formal request for information to increase the number of detention beds for immigrant families up to 15,000. Clearly, the Trump administration is gearing up to detain tens of thousands of families.

Flores Settlement Agreement Prohibits Mass and Indefinite Incarceration of Children

In the 1980s, it was common to take children apprehended by immigration authorities without parents and place them in makeshift detention centers — together with unrelated adults of both sexes.  There were no special accomodations for children; no educational services; and children could be held for months even if the children had relatives in the U.S. willing and able to safely care for children outside of detention.  These conditions sparked litigation which resulted in the Flores Settlement Agreement (FSA) in 1997. This consent decree dramatically improved the treatment of children by setting standards of care in detention consistent with basic child welfare principles and requiring the release of children from detention “without unnecessary delay.”

Trump Administration Wants to End Flores So It Can Indefinitely Detain Children

After the disastrous family separation policy ended in June, and instead of making use of alternatives to detention that have proven to be effective, cost-efficient, and humane, the Trump administration took aim at the Flores Settlement Agreement (FSA). Initially, the administration requested modifications so that children could, instead of being separated from their parents, be detained for longer periods of time with their parents.  In a strongly-worded opinion, Judge Dolly Gee upheld the FSA, saying, “Defendants seek to light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat.”  

Trump and DHS Secretary Kirstjen Nielsen, along with many Republican leaders, blame Judge Gee for what they call “loopholes” that, they argue, compel the government to release children and therefore their parents. They have called on Congress to “fix” the problem through legislation that would end Flores to allow for indefinite family detention.  

Neither of these options have succeeded. Now, the Trump administration is opening up a new front in its drive to end Flores and expand family detention through regulation.  According to last week’s proposed regulation, “In 2001 the parties added a stipulation in the FSA, which terminates the FSA ‘45 days following defendants’ publication of final regulations implementing t[he] Agreement.”  However, according to the original FSA, “final regulations shall not be inconsistent with the terms of this Agreement.”

There’s the rub. The proposed regulation is substantively inconsistent with the FSA in multiple ways. Here are some:

  • A federal court ruled that the FSA applies to children regardless of whether they are accompanied with parents or unaccompanied, but the proposed regulation would create a distinction.  Unaccompanied children would be protected from prolonged detention and cared for under different, more child-centered, standards by the Department of Health and Human Services, instead of by immigration authorities.  Accompanied children generally would be indefinitely detained by DHS with parents under weaker than existing standards.
  • The FSA requires facilities housing children to be licensed by states who have greater expertise in child welfare, but the proposed regulation would allow DHS to set standards despite its extensive record of harm and abuse in their detention facilities.
  • The FSA allows for exceptions to certain standards in emergencies, but the proposed regulation broadens the definition and would allow for exceptions to humane standards under more circumstances.      

Because of these inconsistencies and the FSA’s requirement that implementing regulations be consistent with provisions in the FSA, the court overseeing the FSA will likely see a challenge to the regulation once it is finalized.  Reports have emerged that litigation is already being prepared.  

With Numerous Reports of Mistreatment of Children in Detention, This is No Time to End the Flores Settlement Agreement

Even with the FSA, children have been mistreated in detention for years.  The last thing we should do now is end the FSA and replace it with weaker detention standards and indefinite incarceration.  

Upon re-introduction of a bill in 2005 to protect children in detention, Senator Feinstein explained:

I first became involved in this issue in 2000 when I heard about a young 15-year old Chinese girl who stood before a U.S. immigration court facing deportation proceedings with her hands chained to her waist, like a criminal….And what did our immigration authorities do when they found her? The Immigration and Naturalization Service detained her in a juvenile jail in Portland, Oregon for eight months before her asylum hearing, and more than seven weeks after she was granted asylum.  At her asylum hearing, the young girl stood before a judge, unrepresented by counsel, confused and unable to understand the proceedings against her. She could not wipe away the tears from her face because her hands were chained to her waist.

Recently, the ACLU issued a report based upon 30,000 government documents obtained through the Freedom of Information Act (FOIA) that show  “a pattern of intimidation, harassment, physical abuse, refusal of medical services, and improper deportation between 2009 and 2014” in Customs and Border Protection detention facilities.

In July, more than 200 sworn statements from detained immigrants – mothers, fathers, children – were filed in federal court describing horrific conditions in immigration detention.  Many came seeking asylum only to be thrown into what most described as “dog cages” and “ice boxes” with highly unsanitary conditions where guards kicked and taunted children, guards inhumanely separated and dehumanized parents and children who were forced to sleep on concrete floors in over-crowded, cold cells, where adults and children used toilets in front of dozens of strangers in the middle of cells, where food and water was often limited, even for young children, and where there was limited to no access to phones.

Most recently, Vice News reported that a toddler died weeks after being released from an ICE family detention center where she first became seriously ill.  And, CNN recently reported on children being dosed “with cocktails of psychotropic drugs disguised as vitamins….and forcible injections, which medical records show are powerful antipsychotics and sedatives.”

The Solution:  Effective, Cost-efficient, and Human Alternatives to Detention

According to direct legal service providers who work with immigrants and refugees:

Asylum seekers and those with credible legal claims and family and community in the United States have strong incentives to appear in immigration court and comply with requirements. Consequently, for many, release on recognizance or a minimal bond is appropriate because they pose little flight risk or risk to the community.

Where there is flight risk, alternatives to detention (ATDs) are not only humane, they are successful and cost-effective.  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 GAO study found that the ATD daily rate was less than 7% of the daily cost in detention.

Depending on the facts in each case, there are multiple and effective ATDs to ensuring “high rates of compliance with immigration check-ins, hearings and – if ordered –removal.”  Some options include GPS monitoring devices, in-person reporting or telephonic check-ins.

Here are some facts that support the use of community-support ATD models:

  • 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.
  • Two national ATD programs — one run by the Lutheran Immigration and Refugee Service (LIRS) at $7-24 a day per individual and another run by the U.S. Catholic Conference of Bishops (USCCB) – produced a 97% appearance rate.
  • A 1999 INS-LIRS ATD program for 25 Chinese asylum seekers produced a 96% appearance rate at 3% of the cost of detention.
  • An INS-Catholic Charities program run from 1999-2002, at a cost of only $1,430 per year per person, resulted in a 97% appearance rate for 39 asylum seekers and 64 “indefinite detainees” who could not be removed from the U.S.
  • A Vera Institute of Justice report on a supervised release and assistance program run from 1997-2000 found that, of over 500 asylum seekers, non-citizens with criminal convictions facing removal, and undocumented workers, 91% appeared for required hearings (93% for asylum seekers).
  • A 2015 family detention alternative run by LIRS cost only $50 a day for an entire family to receive housing for families without support, orientations on compliance, access to legal representation and wrap-around case management (just 6% of the cost of family detention).

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: 

Separating children from their parents is wrong. The indefinite detention of children is wrong. The indefinite detention of children in substandard facilities is wrong. These strategies result in trauma, harm and abuse. They are inconsistent with the standards of a civilized society and inconsistent with the Flores Settlement Agreement. And yet, the Trump administration remains determined to do whatever it takes to deny children and families seeking asylum a fair process, even if it means indefinitely detaining as many immigrants as possible and under worse conditions than exist today.  This latest foray is yet another attempt to, as Judge Gee ruled recently, “light a match to the Flores Agreement.” This regulation must be challenged in the regulatory process, in the courts, and in Congress. Ultimately, what is needed is a system by which families with credible asylum claims are released under case management programs and other alternatives to detention that ensure compliance, a system that ensures potential refugees receive a fair and meaningful hearing, and a system that keeps children out of detention facilities that are detrimental to their best interests.