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Immigration Update: BBA Submits Comments in Opposition to Proposed Federal Regulations

November 02, 2018

We recently updated you on a few proposed changes to immigration policies, including proposed regulations that would dramatically alter the protections governing the processing and treatment of immigrant youth. In line with our Principles and past positions, the BBA is submitting comments in opposition to the proposal. You can learn more about the proposed regulations, the BBA’s comments, and a few other immigration developments that we’re keeping a close eye on below.

Flores Agreement Background

In 1997, a settlement agreement was reached in Flores v. Reno, a class action lawsuit filed in 1985 on behalf of unaccompanied undocumented children, challenging Immigration and Naturalization Service’s (“INS”) policies governing children’s release and the conditions children and youth experienced during immigration-related custody. The Flores Settlement Agreement (FSA) includes many protections for unaccompanied immigrant children (UAC), including: 1) a general policy favoring release from detention and family reunification; 2) detention in the least restrictive setting appropriate to the age and special needs of the child when required; 3) the right to a bond hearing; 4) access to humane conditions; and 5) notice of legal rights. In 2002, the Homeland Security Act (HSA) transferred the care and custody of UACs from the INS to the Department of Health and Human Services (HHS) Office of Refugee Settlement (ORR), which assumed the responsibility to comply with the mandates of the FSA. In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act elaborated on the ORR’s responsibility, and both the HSA and TVPRA contain “savings clauses” preserving children’s rights under the FSA.

Since 1997, the counsel for plaintiffs in Flores have had to intervene on a number of occasions to ensure compliance with the terms of the agreement, including in relation to prolonged detention, lack of access to bond hearings, and poor detention conditions. The government has regularly sought to avoid or change the protections in Flores, resulting in a few developments of note in recent years:

  • In 2015, U.S. District Judge Dolly Gee court held (later affirmed by the 9th Circuit) that accompanied children detained have no fewer rights than unaccompanied children, and the FSA applies both to minors who are unaccompanied and those accompanied by their parents.
  • In 2017, U.S. District Judge Dolly Gee issued an order enforcing the agreement, after finding that the ORR was in breach by denying unaccompanied children the right to a bond hearing.
  • In 2018, the DOJ filed a request to modify the FSA, asking for limited emergency relief so that ICE could detain undocumented minors who arrived with their parent or guardian in ICE family residential facilities, and exempt ICE family residential facilities from the Agreement’s state licensure requirement. Judge Gee denied the request, saying that it was “a thinly-veiled motion for reconsideration without any meaningful effort to comply with the requirements…”

The FSA was originally set to sunset in 2003, but the Government thereafter stipulated to continue the agreement until it published regulations implementing it, and last month, DHS and HHS published a Notice of Proposed Rule Making that would “implement” the FSA, claiming it would “satisfy the basic purpose of the FSA in ensuring that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors.” Despite this claim, the proposed rule would significantly alter the current policies in place under the FSA. The areas of particular concern are raised in our comments and discussed in more detail below.

BBA Comments

In October, BBA Civil Rights and Civil Liberties Steering Committee raised the proposed regulations and inquired as to whether the BBA would submit comment. Following analysis, and in light of our recently-approved Immigration Principles and other relevant past positions, the Association is submitting comments in opposition to the proposed regulations, as they would contravene the purpose of the FSA and endanger the rights, liberty, and well-being of immigrants, especially immigrant children. A special thanks goes to our Civil Rights and Civil Liberties Section for alerting us to the regulation, and to our Immigration Law Section and Immigration Working Group for help reviewing the comments.

Our Principles recognize that all people, whether entering with or without authorization must be treated fairly and humanely. The stakes in immigration proceedings are incredibly high, as our report noted:

The outcomes of this process can have life-changing effects on individuals, including with regards to their ability to access the basic necessities of life, remain united with their families, and even to avoid torture, persecution, or death. It is therefore imperative to protect the Constitutional rights of individuals in removal and other immigration proceedings.

And the stakes aren’t just high for immigrants and their families – our whole country will suffer if certain individuals are not able to access the processes and protections they are entitled to:

When, however, the federal or state government or members of the public target a population and limit or seek to limit that group’s access to judicial or administrative forums, it creates a vulnerable subclass, undermining our system of democracy and the Constitution.

You can read more about our Immigration Principles and past positions reference below here. And you can read our full comments on the proposed Flores regulations here. Those areas that are most concerning, and which our comments highlight include:

Indefinite Detention of Children

The Second BBA Immigration Principle provides that “no person’s rights or human dignity should be devalued on the basis of immigration or citizenship status.” In elaborating on that point, the Report urges that all individuals, even those who enter the country without authorization, be treated humanely and fairly and that, as a result undocumented immigrants should not be detained while their legal claims to remain in the United States are resolved—at least absent extraordinary circumstances, such as if, for example, the individual in question presents a threat to public safety or a serious flight risk. This is why we are especially concerned about the proposals in the regulation that would allow for the indefinite detention of children. The FSA specifically mandates a general favoring of release over detention and that minors be released from custody “without unnecessary delay,” in recognition of the “particular vulnerabilities of youth.” The extensive and long-term social, mental, and physical harms experienced by minors held in prolonged detention are well-documented, and that’s why we joined the ABA and others in expressly noting that family detention was not the solution to family separation. Proven alternatives to detention do exist, and established release mechanisms and alternatives to pre-adjudication detention, such as community supervision and GPS monitoring, would be more consistent with justice and due process.

Detention Conditions and Oversight

In those instances when detention must occur, the same principles of fair and humane treatment must apply, and the BBA has long held that there must be policies in place to ensure that detention conditions are humane and that mechanisms exist to ensure proper oversight and accountability. These principles are also embodied in the Flores Agreement, which provides that minors must be held in facilities that are “safe and sanitary” and consistent with a “concern for the particular vulnerability of minors.” We are, then, also especially disturbed by the provisions in the proposal that may threaten the proper treatment of minors, deteriorate the conditions of detention, and weaken oversight of detention facilities.

For example, the proposed regulations would remove the current state-licensure requirement that requires the government to release children, when a parent or other family member is unavailable, to a facility licensed by a state child welfare agency program. Under the proposed rule, the government would be able to select its own auditors to review the conditions and treatment of facilities where children and parents are held together. The government lacks both the expertise that the state agencies bring and the impartiality necessary to ensure that proper oversight occurs. Additionally, the proposed regulations give much wider discretion to DHS and HHS to suspend critical protections for minors in cases of “emergency.” The proposal lists delay of a meal as an example of one such provision that could be excused in the case of an emergency. The breadth and flexibility of the proposed definition is deeply concerning, given that it could legitimize the denial of necessities, such as food, to children. Under the new rule, there is no guarantee that facilities will be safe and sanitary or that minors will be treated with dignity and respect.

Continual UAC Status Redeterminations

The BBA has also been outspoken in support of strengthening and improving due process and other safeguards; our Third Principles reads: “the constitutional right to due process and equal protection, guaranteed to every person regardless of immigration or citizenship status, must be protected and enforced.” We’ve also long supported measures to ensure these protections are guaranteed for those individuals determined to be an “unaccompanied alien child” (UAC), which comes with a number of important legal protections. In past practice, this status has not been reconsidered once established, but the proposed regulation would codify continual redeterminations, providing that officials will make a determination of UAC status “each time they encounter the alien.” Ensuring the UAC status finding remains in place allows for consistency and predictability for both minors and the government throughout the legal process. That’s why we support revoking of status only in instances of fraud or misrepresentation. The ability of the government to suddenly revoke significant safeguards, in the middle of a legal process that depends on the consistency of a previously recognized status, raises due process concerns and could incentivize intentional case delays to avoid granting the additional legal protections, or other unnecessary and intrusive tactics that would allow the government to continually reassess and re-determine a child’s status.

Access to Bond Hearings

Our fourth and final principle states that “Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.” More specifically, the report explains the importance of providing access to a fair immigration process with independent judges, a principle that is currently embodied in the FSA, as it requires that any minor in deportation proceeding be afforded a hearing before an immigration judge unless the minor refuses such a hearing. This provision was reaffirmed in 2017, when the Ninth Circuit expressly rejected a claim that the DOJ does not have statutory authority to conduct a bond hearing under Flores.

The government, in the new proposed regulation, claims again that there is no statutory authority to conduct such hearings and instead institutes a dramatic change by removing the requirement for a bond hearing altogether. In its place, the proposal would introduce a new administrative proceeding by creating an HHS-run “independent hearing process” by which an HHS officer, rather than an immigration judge, would determine whether the child poses a danger to the community or a flight risk. This approach would remove the due process requirements that accompany an immigration court proceeding, and give the same entity tasked with holding the minor in custody the ability to make determinations about the minor’s release from custody, making it impossible to guarantee an independent process.

Additional Provisions of Concern

Finally, the comments list other areas of concern in the proposal, including:

  • Standards for Release on Parole: The proposed regulation removes an internal cross reference to parole-related provisions in 8 CFR 235.3(b), which would mean that minors placed in expedited removal would be held to the same strict standards for release on parole as adults. The FSA has been interpreted to allow children subject to expedited removal to be considered for release on parole on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit,” if the minor is not a security or flight risk. Here, again, the proposed regulation fails to consider the particular vulnerability of youth as required by the FSA.
  • Limits on Release: In addition, the proposal limits those adults to whom children can be released to a parent or legal guardian, despite the specific language of the FSA providing that a child in DHS custody can be released to a parent, a legal guardian, an adult relative, or an adult individual or entity designated by the parent or legal guardian. Given the previously mentioned and well-documented harms experienced by children held in detention, it is improper for the proposal to create more barriers to release.
  • Lack of proper standards for determining change in circumstances: The proposed regulation provides DHS the authority to take a child back into custody after having been released if there is a “material change in circumstances showing the child is an escape risk, danger to the community, or has a final order of removal.” On its face this provision complies with court requirements, but it fails to impose any specific burden on DHS to establish the material change. Without placing a burden on DHS in this manner, the process will be neither predictable nor fair, and could lead to the improper re-detention of minors with no meaningful way for them to challenge the decision.
  • Costs to the public of expanding family detention: Finally, the government failed, in the Notice of Proposed Rule Making, to properly weigh the costs and benefits related to the expansion of family detention. In 2014, the Government Accountability Office found that the costs of alternatives to detention were less than 7% of the costs associated with detention. All this suggests that the proposed regulations are not only inhumane and contrary to the purpose of the Flores Agreement, but are also fiscally irresponsible given the existence of alternatives to detention that have been proven to be safe, effective, and affordable.

For all of the above reasons, we hope the government will reconsider the provisions in the proposal which threaten the rights, dignity, safety, and well-being of immigrant youth. In the words of our Principles:

The BBA affirms the longstanding commitment of the American legal profession to advocate fiercely on behalf of the human dignity and human rights of all.

We hope you’ll join us by submitting your own comments here. You have until November 6 to do so.

Keeping the Flores protections in place is more important than ever in light of renewed talk of a family separation policy – which the BBA remains opposed to — and the deeply concerning rhetoric and tactics being deployed against those who may soon be seeking asylum at our border. We’ll continue to monitor these developments, including reports of an executive order related to asylum said to be due out next week. In the meantime, Boston Bar Foundation grantee organizations have compiled resources illustrating the devastating conditions that asylum-seekers from Guatemala, El Salvador, and Honduras are fleeing, which you can access here and here.

The treatment of asylum-seekers and those arriving at our borders is, of course, only one of many immigration developments that we are watching closely. A few others include:

Proposed Regulations on Public Charge Determinations: We are also planning to comment on proposed regulations that would radically alter the definition of “public charge” for immigration inadmissibility purposes. The proposal could impact millions of immigrants and their families and have significant public health consequences. You can find more resources about the proposal on the Protecting Immigrant Families page, and if you wish to submit your own comments, guided by the information there, you have until December 10 to do so here. Stay tuned to learn more about how you can join our efforts!

Massachusetts Immigration Court Backlogs: This week, WBUR did a deep dive on the backlog of cases in Massachusetts immigration courts, noting a 76% spike in cases since President Trump took office. The Boston Bar Association Immigration Working Group report highlights just how crucial it is to have a well-functioning immigration court system – one that should be independent of the executive branch and thus, unlike the current one, free from political pressures. The current backlog further underscores the need for improvements in the immigration court system, as the lengthy wait times for adjudication have troubling implications for access to justice, particularly for victims of trauma who are seeking asylum and may be less able to accurately recall the details of their stories over time. Read more about why we are calling for a complete overhaul of our immigration court system here.

Birthright Citizenship: Finally, we are alarmed by reports of a proposed attempt to use an executive order to change a matter of well-settled constitutional law – birthright citizenship under the 14th Amendment. We will be watching this matter closely and will continue to inform our members of further developments.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association