Proposed federal rule would bypass settlement on the rights of unaccompanied immigrant minors
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A federal rule to be proposed Friday would effectively withdraw the United States from a decades-old settlement regarding the treatment of unaccompanied immigrant minors, the Washington Post reported Thursday.
NPR, Vox and the Wall Street Journal also have coverage.
The proposed rule comes from the Department of Homeland Security, which houses the immigration enforcement agencies, and the Department of Health and Human Services, which is responsible for the care of unaccompanied immigrant minors. The agencies are proposing regulations to implement the 1997 settlement in Flores v. Reno, which governs the rights of unaccompanied minors when they’re in federal immigration custody. The government was expected to make those rules when it agreed to the settlement, but has never done so.
The proposal, scheduled to be published in the Federal Register, says it would “satisfy the basic purpose of the [settlement]” with modifications to comply with the Homeland Security Act and the Trafficking Victims Protection Authorization Act—but in a way that’s “workable in light of subsequent changes.”
“Most prominently, the rule would create an alternative to the existing licensed program requirement for family residential centers, so that ICE may use appropriate facilities to detain family units together during their immigration proceedings, consistent with applicable law,” the proposal’s summary says.
In a statement, Homeland Security Secretary Kirstjen Nielsen said “legal loopholes” prevent her department from “appropriately detain[ing] and promptly remov[ing]” families. The Post says the proposal would permit Nielsen’s department to keep parents and children in immigration detention for a longer time. Currently, the department has only 3,500 beds for family units, and they’re generally full.
By lifting the Flores settlement’s requirement that minors be housed in state-licensed residential facilities, the proposed rule would make it easier to detain more families for a longer time. Homeland Security officials believe releasing families from detention invites them to fail to appear in immigration court, the Post notes. A 2016 study of immigration court data by TRAC Reports, a data-collection group at Syracuse University, found that the majority of immigrants do show up; in 2015, the overall appearance rate was 76.6 percent.
The proposed rule is highly likely to bring the parties back to court, the Post says. The judge currently overseeing the long-running Flores litigation is U.S. District Judge Dolly Maizie Gee of the Central District of California, who in July rejected a direct request from the federal government to lift the settlement’s requirement that minors be kept in licensed facilities, therefore allowing longer detention of families. Her order called the proposal “a fundamental and material breach of the parties’ Agreement.
“Defendants seek to light a match to the Flores Agreement and ask this Court to upend the parties’ agreement by judicial fiat,” Gee wrote in July.
Flores plaintiffs’ attorney Carlos Holguín of the Center for Human Rights and Constitutional Law did not immediately respond to the ABA Journal’s request for comment. However, in an interview with NPR in June, Holguín suggested that the settlement had never been implemented in federal rules because such rules would have to be consistent with the settlement.
A rule that’s not consistent with the settlement, Holguín said, would be another violation of the settlement and end up back in court.
