Immigration Law

New rule would override Flores settlement, allow detention of immigrant families for more than 20 days

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Updated: A new rule unveiled by the Trump administration on Wednesday would override the so-called Flores settlement that caps the detention of immigrant children at 20 days before their release or transfer to a licensed facility.

The rule, set to be published in the Federal Register this week, eliminates the 20-day cap and allows the government to keep immigrant families in detention indefinitely while their immigration cases are pending. The New York Times, the Washington Post and BuzzFeed News have coverage; a press release is here.

The rule eliminates a requirement that family detention centers be licensed by the states. Instead, they would be governed by standards set by U.S. Immigration and Customs Enforcement. The rule was first proposed last fall.

The ABA “strongly objects” to the new rule, ABA President Judy Perry Martinez said in a statement Friday when the rule was published in the Federal Register.

“We must address the immigration challenges facing the United States in a humane, fair and effective way that upholds the law and the values of our country,” Martinez said. “We strongly urge withdrawal of the new rules and development of policies that strengthen the framework of legal protections available for unaccompanied children, families and other vulnerable asylum-seekers.”

The rule would take effect 60 days after publication, but it has to be approved by a federal judge, the New York Times reports. Court challenges are expected.

The 1997 Flores settlement said most minors in immigration custody should be released without unnecessary delay, with first preference for release to a parent, followed by release to a legal guardian, an adult relative, a designated adult or a licensed program.

The settlement, as interpreted in 2015, sets a 20-day cap on holding both accompanied and unaccompanied children in unlicensed facilities.

Last July a federal judge turned down the government’s request to modify the Flores settlement to allow the indefinite detention of families.

According to the Department of Homeland Security press release, the Flores settlement always contained provisions for its termination. At first, it was to terminate in five years. Then the parties agreed in 2001 that the settlement would end after final rule-making, DHS says.

But a fact sheet by Human Rights First says the agreement ends with rule-making that implements its terms. The Trump administration seeks instead to modify the agreement, according to the group.

Kevin K. McAleenan, the acting secretary of homeland security, said in the press release that the new rule “allows the federal government to enforce immigration laws as passed by Congress and ensures that all children in U.S. government custody are treated with dignity, respect and special concern for their particular vulnerability.”

Peter Schey, a lawyer involved in the original case, disagreed with McAleenan’s assessment in a New York Times interview. “These regulations really reflect a flagrant disregard on the part of President Trump and his administration for the safety and the well-being of children in the care of the federal government,” he said.

In her statement, Martinez said prolonged detention impedes access to counsel and harms children. “Medical professionals and child welfare specialists have repeatedly warned of the detrimental physical, mental and emotional harm to children caused by even short periods of detention,” she said.

Detention isn’t needed to ensure families attend immigration hearings, Martinez said. “One alternative to detention, the Family Case Management Program, was extremely effective, with compliance rates of 99% for ICE check-ins and 100% for court hearings,” she said.

Updated Aug. 23 at 2:56 p.m. to include the statement by ABA President Judy Perry Martinez.

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