On August 21, 2019 the Administration announces a final new rule that would overturn the 1997 Flores settlement. Last October 2018, CWLA submitted comments on the Administration’s proposed regulation that, in part, restricts child detentions to no more than 20 days.

The new regulation is an attempt to change the federal government responsibilities under the 1997 Flores consent decree which has been enforced through federal courts including under this Administration.

In our comments in 2018, we said, “CWLA opposes the harmful and dangerous practice of detaining children—alone or with their parents—because it undercuts what is in the best interest of these children. We also firmly believe that all facilities overseeing the care of children should be subject to standards established by an agency with expertise in child welfare.”

In July 2018, U.S. District Court Judge Dolly Gee rejected the Trump Administration’s request to overturn the settlement. The Judge was highly critical of the Administration and Congress calling the Administration effort to overturn Flores “a cynical attempt” to shift responsibility to the Judiciary for “over 20 years of Congressional inaction and ill-considered executive action that have led to the current stalemate.” Senator Lindsey Graham (R-SC) pushed through legislation in his Senate Judiciary Committee to overturn parts of the protection. Passed just before the break, it is unlikely to overcome a Senate filibuster if he attempts to move the bill alone.

The final rule would take effect in 60 days after the announcement unless there is court action. It applies to both children and youth who arrive as unaccompanied minors as well as children with families. It not only removes the current restriction that prohibits the detaining of children for more than 20 days but also allows ICE to regulate their own shelters and supersedes state regulations of such facilities.

CWLA highlighted concerns over the proposed new licensing standards in the proposed regulations:
“The rule proposes an alternative federal licensing scheme, consistent with ICE standards, for family residential centers that would govern the operation of family detention…Within child welfare, the primary purpose of residential services is to provide specialized therapeutic services in a structured environment for children with special developmental, therapeutic, physical, or emotional needs. The goal of these programs is to help families not to cause further trauma to the children and their parents.”

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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