In 1985, 15-year-old Jenny Lisette Flores fled the brutal civil war in El Salvador, seeking protection in the United States. Along with other child asylum seekers, she was held by immigration authorities in deplorable conditions, forced to share sleeping quarters with unrelated adults, subjected to regular and invasive strip searches and deprived of any education or recreational activities.
The litigation over these conditions went all the way up to the U.S. Supreme Court—and in what was a victory for children’s rights, the U.S. government entered into a settlement agreement which set forth standards for the care and custody of children in immigration detention. The three main commitments that came out of the agreement are that, with limited exceptions, immigrant children are to be released without unnecessary delay; that while detained, they are to be held in the “least restrictive” setting possible; and that the facilities in which they are detained be licensed by state child protection authorities.
The Flores Settlement Agreement was established with the goal of ensuring that no child would suffer as Jenny and other young children had in immigration detention. But this week, the Trump administration published a rule which attempts to do an end-run around it.
The administration’s rule authorizes the government to indefinitely imprison immigrant children—many of whom, like Jenny Flores, are fleeing brutal violence. This could mean children spending months, or even years, in detention. The rule also does away with the fundamental safeguard that requires the facilities in which children are held be licensed to care for minors.
When the Trump Administration first proposed this rule in September 2018, many immigrant rights and children’s rights groups—including our organization, the Center for Gender & Refugee Studies—submitted lengthy comments urging the government to withdraw the proposed rule, which was so obviously counter to the best interests of children. Despite thousands of comments expressing opposition, the Administration issued the rule anyway.
It is indisputable that barring exceptional circumstances, jailing children is wrong. Child welfare experts agree that detention, even for short periods of time, has profoundly adverse impacts on children’s long-term health and development.
Under the Obama Administration, the Department of Homeland Security (DHS) appointed an Advisory Committee, which included experts on mental health and childhood development, to evaluate the government’s practice of detaining of families with children. (One of the authors of this piece was a Committee member.) The Committee published an extensive report unanimously concluding that the detention of families is so deleterious to the well-being of children that it should always be the exception, rather than the norm.
Circumstances for children in immigration detention under Trump are exponentially worse than they were under Obama. Since last year, at least seven children have died in the custody of DHS’s Customs and Border Protection (CBP) agency after a decade during which no deaths of children in CBP custody were reported. Earlier this summer, the DHS Office of Inspector General found that the Department had committed “egregious violations” of its own detention standards. Pediatricians have been appalled by the conditions in DHS’s overcrowded facilities—where children have been held in metal cages and forced to spend sleepless nights on hard, concrete floors, under harsh lights that remain on 24 hours a day. Many children in detention have been denied adequate food, clean water, essential health care, and basic hygiene products, and the Trump Administration recently argued in federal court that DHS should not be required to provide children in their custody with soap or toothbrushes.
DHS’s new rule allows the agency itself, rather than an independent state licensing authority, to oversee conditions in these facilities. The idea that DHS can be trusted to regulate its own detention facilities is ludicrous, given that it has repeatedly proved itself to be incapable of keeping children safe and healthy.
The Trump Administration has insisted that the new rule is necessary to “eliminat[e] the incentive” for families to “make the journey to the United States.” This idea, that locking up children and families will deter future migration, isn’t a new one. Both the Bush and Obama Administrations resorted to family detention centers, in the hope that other migrants would think twice before seeking refuge in the United States. But this approach is based on a false assumption: Even the most draconian immigration policies do not deter people who are fleeing life-threatening violence in their home countries. Moreover, in 2015 a federal court ruled that it was illegal to detain immigrant and asylum-seeking families for the purpose of deterrence.
This new rule is scheduled to go into effect in late October. But it faces some formidable legal challenges. By its terms, the Flores agreement can only be superseded by regulations that substantially implement the agreement itself. By any objective measure, a rule that allows indefinite detention of children in unlicensed facilities is in fact directly at odds with the agreement and unlikely to hold up in court.
Attorneys involved in the Flores litigation are already challenging the new rule. They have called on U.S. District Judge Dolly Gee, who oversees the Flores agreement, to issue a permanent injunction to block the rule from taking effect. Just last year, Judge Gee rejected a request by the government to amend the Flores settlement, holding that detaining children indefinitely in unlicensed facilities would constitute a fundamental breach of the agreement. Judge Gee ruled that, in implementing the settlement, the best interests of children must be considered “paramount.”
If, as expected, Judge Gee finds the Trump Administration rule to violate the settlement, it will trigger a lengthy legal battle, which may ultimately end up in the Supreme Court. By that time, there may be a different set of actors in the White House, and hopefully this administration’s eagerness to cage children will be a thing of the past.
In the meantime, advocates must do their best to ensure that this new rule does not take effect. The lives of thousands of children are at stake.