December 06, 2018

ABA opposes proposed regs on unaccompanied children

ABA President Robert Carlson submitted comments Nov. 6 urging U.S. Immigration and Customs Enforcement to withdraw proposed regulations governing the apprehension, processing, care and custody of alien minors and unaccompanied children.

The proposed regulations, published Sept. 7 for comment, are intended in part to implement the 1997 settlement in the case of Flores v. Reno. Known as the Flores Settlement Agreement (FSA), the agreement restricts the length of time children can be detained in immigration detention and sets minimum standards for their care and custody while detained.

Under the agreement, the government is required to release children from immigration detention without unnecessary delay to their parents, other adult relatives, or licensed programs. The settlement also requires immigration officials to give detained minors a certain quality of life, including things such as food, drinking water, medical assistance in emergencies, toilets, sinks, temperature control, supervision and as much separation from unrelated adults as possible.

The original settlement was designed to be temporary pending the issuance of formal regulations, but no regulations have been issued as the government has instead followed the settlement’s requirements over the years. 

The proposed regulations would permit the indefinite detention of families by eliminating the FSA’s current limitation on the detention of children that includes a requirement to release children who arrive as part of families from detention within 20 days. The proposed regulations would permit children to be held with their parents during the duration of immigration proceedings, which can take years. The regulations also, however, would end existing FSA Agreement requirements that states license facilities that hold children, including family detention facilities.

Carlson pointed out that the ABA strongly disagrees with the commentary throughout the proposed regulations that “seems to suggest that the FSA has forced the government to either pursue a policy of family separation or a policy of expanded family detention.” The proposed regulations, he said, “would essentially authorize the indefinite detention of children and codify the practice of family separation” and are “antithetical to the purpose of the FSA.”

He emphasized that the use of family detention and family separation have not deterred desperate parents from seeking protection for their children and have proven incredibly expensive through increased costs of detention and defense against litigation challenging the policies.

He explained that there are cost-effective and humane alternatives to detention programs, such as the family case management program, that have been successful in “ensuring that families appear for their immigration court proceedings and build on the critical progress already made in ensuring legal professional and humane treatment of children in our immigration system.”

“Medical professional and child welfare specialists, among others, have warned of the detrimental physical, mental and emotional harm to children caused by even short periods of detention, as well as the trauma caused by separating children from their parents,” Carlson wrote.

He emphasized the first-hand experience and expertise that the ABA has gained through several association projects, including the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen, Texas, and the Children’s Immigration Law Academy in Houston, Texas. These projects have led the ABA to develop numerous policies and standards addressing issues related to immigration detention and the treatment of children in the U.S. legal system.

In urging that the proposed regulations be withdrawn, Carlson suggested that the relevant agencies instead work toward strengthening the framework of legal protections available for unaccompanied children, families, and other vulnerable asylum-seekers.