On Monday, October 29, CWLA submitted comments on the Administration’s proposed regulation that would overturn or supersede the 1997 Flores settlement.

On Friday, September 7, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) published a federal register notice that proposes, through the regulation process, to amend a court agreement relating to the apprehension, processing, care, custody, and release of children detained at the U.S. border. The notice, Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, seeks to overturn a court agreement, Flores v. Reno, referred to as the “Flores Agreement.”
The proposed regulation is an attempt to change the federal government responsibilities under the 1997 Flores consent decree which has been enforced through federal courts, most recently in July of this year. According to Secretary of Homeland Security, Kristjen Nielsen, “Today, 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. 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.”
In part, the CWLA comment states:

“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 U.S. District Court Judge Dolly Gee rejected the Trump Administration’s request to overturn the 1997 Flores agreement that restricts child detentions to no more than 20 days. 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.” Congress has tried to preempt the Flores agreement through the appropriations process in the House but has been unsuccessful so far.

CWLA also 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.”

The deadline for submitting comments is on or before November 6, 2018. Comments can be submitted in several ways including Federal eRulemaking Portal (preferred): https://www.regulations.gov. Follow the website instructions for submitting comments; Email: ICE.Regulations@ ice.dhs.gov; Include DHS Docket No. ICEB–2018–0002 in the subject line of the message. For more information go to Federal Register, Friday September 7, 2018.

For a copy of the CWLA comments to read or to use to inform your comments go here.

About the Author:

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

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