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WASHINGTON, D.C. (August 21, 2019) —The National Immigrant Justice Center (NIJC) condemns the Trump administration’s new regulation, announced today, which will allow the Department of Homeland Security (DHS) to jail children indefinitely in unlicensed detention facilities and terminate a decades-old legal settlement that was created to protect the basic rights of immigrant children in U.S. custody.

The administration announced the rule today during a press conference; its text is expected to be published in the Federal Register by the end of the week. Based on the administration’s description and the rule as it was proposed last year, the new final rule is expected to roll back basic requirements for how children are treated in government custody and expand DHS’s authority and capacity to hold children in its sprawling network of jails and prisons, whose only oversight would be its own failed inspections systems. It is expected to allow DHS to indefinitely detain children in family detention centers. Federal District Court Judge Dolly Gee, of the Central District of California, is expected to review the rule and could potentially block its implementation if it is determined that the administration has violated the 1997 Flores Settlement Agreement regarding the treatment of immigrant children in government custody.

NIJC Executive Director Mary Meg McCarthy responded to the administration’s announcement of the new rule:

“History will judge our nation, and our leaders, by how we treat vulnerable families and children. For decades, our courts have recognized that immigrant children seeking safety in our country must be assured basic protections. This administration has chosen to obliterate those protections and will place countless families and children in danger to score political points. This new rule is deplorable, it will undoubtedly lead to constitutional violations, and it will long be a symbol of this administration’s disrespect for immigrants, children, and our country’s rule of law.”

The administration issued the new rule despite receiving tens of thousands of comments in opposition from Americans and human rights organizations, including NIJC, after the rule was proposed in September 2018. Since that announcement, at least six immigrant children have died in government custody. (One-year-old Mariee Juárez had already died months earlier, after she and her mother were released from a U.S. Immigration and Customs Enforcement family detention camp.) The American Academy of Pediatrics and the government’s own medical experts have decried the family detention system this rule attempts to expand as posing an irremediable risk to children’s lives and well-being. In recent months, lawyers, doctors, members of Congress, and DHS’s own watchdog agency have reported conditions resembling concentration camps in DHS facilities holding children and families. The government’s use of unlicensed facilities to detain unaccompanied immigrant children also has come under scrutiny. 

The Flores Settlement Agreement was the result of litigation originating in the 1980s, when children fled alone to the United States to escape civil wars in Central America. The settlement was developed to protect immigrant children from indefinite detention in unsafe and inappropriate conditions. The agreement requires that children be released from custody as quickly as possible, preferably to a parent. Until they can safely be released, the settlement requires that children be held in the least restrictive setting; generally, in a non-secure facility licensed by a child welfare entity. In 2016, the Ninth Circuit Court of Appeals interpreted the Flores Settlement Agreement to apply not only to unaccompanied immigrant children coming to the United States, but also to children who come accompanied by a parent or guardian. Under that ruling, a child can only be held in a licensed family detention center and for no longer than 20 days.

NIJC demands that the administration and Congress end the United States’ cruel and unnecessary reliance on imprisonment as the centerpiece of our country’s migration management system. The billions of tax dollars spent every year to lock up immigrants in punitive jails, prisons and detention camps should instead be used to expand proven community-based programming which ensure individuals have access to medical care and legal counsel, and provide the humane welcome the United States should be proud to offer people who arrive seeking safety.

Read NIJC's summary and top-line analysis of the final rule.