吃瓜大本营

Last Thursday, two federal agencies announced concerning the detention of immigrant children. They are nothing less than a roadmap for keeping children and families locked up indefinitely.

The proposed regulations have a very clear goal, which is to terminate a longstanding federal consent decree 鈥� known as the Flores Settlement Agreement 鈥� that sets nationwide standards concerning 鈥渢he detention, release, and treatment of minors鈥� in immigration custody. The 1997 agreement arose out of litigation challenging the government鈥檚 practice of detaining children for lengthy periods of time in inhumane conditions.

The American Academy of Pediatrics and numerous child-welfare experts have that jailing children and parents can severely damage their physical and mental health, often irreversibly. For decades, Flores has stood as a critical check against government efforts to needlessly jail children and families and prevented abuse of children in custody.

The government has often chafed under these legal obligations, but Flores has now come under direct assault by the Trump administration. The White House is characterizing Flores鈥� protections as a 鈥溾�� and has even that the agreement justified its brutal family separation policy. Its allies in Congress have several bills seeking to eliminate Flores protections and echoed the Trump administration鈥檚 anti-Flores rhetoric.

This is a smokescreen: Flores did not require this administration to tear children from their parents, as the federal judge overseeing the agreement has already . Rather, family separation is part and parcel of the Trump administration鈥檚 efforts to deter asylum seekers from coming to the United States and its unceasing attacks on immigrant communities.

Gutting Flores protections is the next step in that effort.

After these proposed regulations go into effect, the government intends to declare itself in compliance with Flores and will ask the federal judge who oversees the agreement to terminate it. Freed of the Flores agreement, under these regulations, the government will then detain more vulnerable children and families for longer, with less oversight, and frequently in worse conditions.

Here鈥檚 how that would work. The government currently operates several 鈥渇amily residential centers鈥� 鈥� doublespeak for family jails 鈥� where they hold parents who came to the United States with their children, including infants and toddlers.

Flores restricts the government鈥檚 ability to hold children in family jails for prolonged periods. After a set deadline expires, the government either has to release children to parents or sponsors in the community or transfer them to a 鈥渓icensed facility,鈥� meaning a facility licensed by a state child welfare agency for housing kids. The government has tried to obtain state child welfare licenses for their family jails, so that families can be held for longer. But it has had serious trouble securing or maintaining these licenses 鈥� and for good reason. Over the years, advocates and detainees have reported numerous incidents of inhumane conditions in family detention centers, including allegations of sexual assault by guards and inadequate access to child care, medical and mental health care, and legal assistance. The government鈥檚 own medical consultants have openly criticized the government鈥檚 current and proposed expansion of family detention, that 鈥渢here is no amount of programming that can ameliorate the harms created by the very act of confining children to detention centers.鈥�

Instead of addressing these serious problems, the regulation would simply sweep aside the state licensing requirements. They would instead allow the Department of Homeland Security to operate these detention centers under standards that DHS sets for itself 鈥� not state standards 鈥� and would allow compliance to be determined by auditors hired by DHS itself 鈥� not state agencies. In other words, DHS would pay someone to say that its family jails meet its own requirements. The process is especially problematic given DHS鈥� track record of operating jails rife with abuse that it regularly fails to inspect or monitor.

Under the regulations, the government would also institute an obviously flawed process for reviewing the custody of unaccompanied children. Every year, the Office of Refugee Resettlement (ORR) holds tens of thousands of 鈥渦naccompanied children鈥濃�� immigrant children apprehended without their parents 鈥� in facilities throughout the country. Flores, along with a designed to prevent child trafficking, has a strong presumption in favor of releasing unaccompanied children from government custody into placements with family members or in the community.

Despite these mandates, ORR currently puts numerous roadblocks in the way of releasing unaccompanied kids. The ACLU has repeatedly sued over ORR鈥檚 detention practices, such as its unlawful custody of juveniles based on unfounded accusations of gang affiliation, and the that ORR鈥檚 director 鈥� who has no expertise or experience in child welfare or social work 鈥� personally sign off on the release of certain children.

Others have ORR鈥檚 procedures for putting kids in secure facilities without notice as well as its one-sided and process-free methods for determining the fitness of family members who are trying to claim custody of their children. These practices can result in keeping unaccompanied children in custody for months or even years.

Currently, Flores affords every child in government confinement the right to a custody hearing before an immigration judge 鈥� an important counterweight to ORR鈥檚 deeply problematic detention practices. The government鈥檚 proposed regulations would eliminate this right, replacing it with an administrative hearing process where ORR鈥檚 own officers will determine whether a given child presents a flight risk or danger 鈥� and giving ORR enormous leeway to deny release to children even if they manage to win those slanted hearings. They would also provide no recourse for family members who ORR deems to be 鈥渦nfit鈥� to care for their children. Again, this would allow the government to detain more children, in harsher conditions, for longer, and shield even more of the detention apparatus from meaningful oversight.

The ACLU is gearing up to lodge our objections to these regulations and to resist the government鈥檚 effort to expand its ability to detain kids. Despite international condemnation, public outrage, and a rebuke from the federal courts over its family separation policy, the Trump administration continues to double down on its efforts to attack immigrant children.