Despite warnings from health experts and advocates that keeping children in detention puts their health at risk, the Trump administration is moving to detain families that cross the border for the duration of their immigration proceedings.
The policy would result in the detention of children for longer periods of time in facilities that would not have a state license. And with the federal government facing numerous allegations of misconduct, including that some children under its care have been forced to take psychotropic drugs and that some staff members have committed sexual assault, experts say the proposed changes could put the health of this vulnerable population at further risk.
The proposal from the Homeland Security and Health and Human Services Departments would end a long-held court agreement, known as the Flores Settlement Agreement, that laid out terms for the treatment of juveniles in the custody and care of the U.S. government.
The agencies say that there are barriers to holding families together during immigration proceedings. The Flores agreement requires that facilities that hold children must have a state license, but most states do not have systems to approve such licenses for family facilities, so families are typically released in the U.S. after 20 days.
The proposal would create a federal licensing system to get around this barrier and allow DHS to hold family units for longer periods of time.
Released in September, the proposal says new regulations would “satisfy the basic purpose” of the Flores Settlement Agreement and would result in the agreement ending 45 days after publication of final regulations.
“The proposed rule ensures that all alien minors and unaccompanied alien children in the Government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors,” a DHS official said in a statement to National Journal.
But health experts and advocates disagree, arguing that the departments’ regulations would water down protections for migrant children and put their physical and mental health at risk. The proposal received nearly 100,000 comments before the comment period closed on Nov. 6.
“There is no evidence that any amount of time in detention is safe for children,” said Alan Shapiro, cofounder and director of Terra Firma, a group that focuses on the health needs of unaccompanied immigrant children. Shapiro coauthored the American Academy of Pediatrics 2017 policy statement urging that “children in the custody of their parents should never be detained, nor should they be separated from a parent, unless a competent family court makes that determination.”
“Clearly families that were in detention for months suffered a lot,” said Shapiro, who has visited the family detention centers. “We saw depression—maternal depression. We saw maternal helplessness and loss of control where they felt that they were no longer able to parent their children in the way that they needed to. They were not able to buffer and support their children’s own trauma because they lost that locus of control.”
He also said children held there were frustrated, and sometimes suffered from suicidal ideation or showed behavioral problems.
“The government is proposing keeping families and children in detention for the duration of their immigration process until they can go to an immigration court and get their cases heard,” Shapiro said. “We know that, from the children and families we work with, those cases could take years to finish. So is the government actually proposing that they keep families and children in detention for years? I can say clearly that will result in direct harm to children and the women in detention.”
The Senate Homeland Security and Governmental Affairs Committee in September held a hearing on the reinterpretation of the Flores Settlement Agreement. “I will say this unequivocally: We do not have enough facts to even consider indefinite detention of families,” ranking member Claire McCaskill said.
“According to the briefings we’ve received, ICE would need an additional 15,000 beds just to house the immigrant families for 30 days, at a cost of over $1.3 billion per year,” she added.
But Matthew Albence, executive associate director for enforcement and removal operations at U.S. Immigration and Customs Enforcement, said releasing families before their proceedings are done creates legal loopholes for criminals.
“These same loopholes encourage parents to send their children on the dangerous journey north, and further incentivizes illegal immigration,” he said in prepared testimony.
In terminating the agreement, experts say, the departments would also be getting rid of a crucial third-party monitor that helps ensure the court stipulations are being followed. The agreement provides access to attorneys to meet with minors in DHS and HHS facilities, but the new proposal says that with the termination of the agreement, this will no longer be necessary and will not be codified in regulation.
“[The lawyers] are allowed to go in and interview children in government custody to make sure that they’re complying with the settlement,” said Jennifer Podkul, policy director for Kids in Need of Defense, which provides pro bono legal services to unaccompanied children entering the U.S. “So that means they can go into Customs and Border Protection facilities, they can go into [Office of Refugee Resettlement] facilities, they can go into the DHS facilities, and they have a right to go in and have access to the children and have confidential interviews with the children in order to ensure that the government is complying with the minimum standards that were outlined in Flores. If they’re not, then they can file a motion to enforce.”
Podkul pointed to a case in which attorneys brought a motion to enforce Flores in April when minors in HHS custody alleged that they were being compelled without parental consent to take psychotropic drugs.
“Youth report being told that if they refuse drugs they will remain detained, be denied release or privileges, or be physically forced to take them,” the motion states. California district court Judge Dolly Gee ordered on July 30 that HHS must obtain permission from a “person legally authorized to give medical consent” before administering such drugs.
The government’s proposal would remove key third-party oversight and monitoring, according to KIND.
“The ability of Flores counsel to interview detained children in a confidential manner that enables them to share information about how they are being treated has been critical to identifying mistreatment and non-compliance with standards,” the organization stated in Nov. 6 comments.