What’s in New Trump Immigration Rule Overriding Flores Agreement? 3 Key Changes

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Floodlights at the largest detention facility in the U.S for immigrant families in Dilley, Texas. (Julie Small/KQED)

The Trump administration published regulations Friday intended to eliminate a decades-old legal agreement protecting children in federal immigration custody. The new rule, announced Wednesday, would allow children detained with their parents to be held indefinitely in jail-like facilities -- and reduce independent oversight of the conditions for tens of thousands of migrant children.

Since 1997, the Flores Settlement Agreement, a consent decree in a class-action lawsuit, has bound federal immigration authorities to certain standards of care for minors in their legal custody. The agreement requires the government to treat them "with dignity, respect and special concern for their particular vulnerability as minors."

It favors the release of children to family members or sponsors "without unnecessary delay," and requires placement in "the least restrictive setting" appropriate for the child's needs, provided the child will appear in immigration court and isn't a danger to anyone.

The Flores settlement requires children to be placed in facilities that are licensed by a  state agency for the residential care of minors. After the Obama administration began holding thousands of parents and children in locked family detention centers run by U.S. Immigration and Customs Enforcement, federal courts interpreted the settlement to say that kids had to be released promptly from such unlicensed facilities, generally within 20 days.

But Trump administration officials have fought the Flores agreement, arguing that its existence encourages families from Central America and beyond to flock to the U.S.-Mexico border with their children.

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"Human smugglers advertise, and intending migrants know well that even if they cross the border illegally, arriving at our border with a child has meant that they will be released into the United States to wait for court proceedings that could take five years or more," said Acting Secretary of Homeland Security Kevin McAleenan in a press conference Wednesday, announcing the regulations  that would supersede the court settlement.

The new rule will implement the major terms of the Flores agreement and establish high standards of care for children and families in custody, McAleenan added.

Immigrant advocates dispute the idea that the legal protections are spurring immigration.

"This administration has dramatically and dangerously misrepresented what the Flores Settlement Agreement is and does," said Neha Desai, immigration director for the National Center for Youth Law in Oakland. "It’s nothing more or less than a set of bedrock child welfare principles that protect vulnerable children in fundamental ways. It doesn’t confer any immigration benefits and it doesn’t exceed any norms of child protection."

Desai and other plaintiffs' lawyers in the Flores case have already filed a motion with U.S. District Judge Dolly Gee in Los Angeles, calling for a permanent injunction to block the new rule from taking effect. They now have a week to submit additional legal briefs. Then Judge Gee will decide whether the regulations are consistent with the requirements of the Flores agreement.

A draft rule was released last November and drew more than 100,000 public comments. The final rule is set to take effect in 60 days, unless it is blocked by the court.

Here are three big takeaways.

1. Families Can Be Held Indefinitely

Under the new rule, Immigration and Customs Enforcement officials would be empowered to hold children and their parents in ICE Family Residential Centers, with no restriction on the length of  detention.

In 2015 Judge Gee ruled, and the U.S.9th Circuit Court of Appeals affirmed, that the Flores agreement applied to all "alien minors" in government custody, including those accompanied by their parents or legal guardians. Gee added that if children were not in a state-licensed facility, they had to be released "as expeditiously as possible," and if, as federal attorneys argued, 20 days was “as fast as [the Government] . . . can possibly go,” that was an acceptable time frame for placing children in licensed shelters.

If the rule takes effect, that time limit would no longer apply.

By ending the Flores agreement, "the new rule closes the legal loophole that arose from the reinterpretation of Flores — which Congress has refused to do — allowing the federal government to house alien families together in appropriate facilities during fair and expeditious proceedings, as was done by the previous administration in 2014 and 2015," said McAleenan.

2. Family Facilities Will Be Licensed by the Feds

The new regulations create a federal licensing system for the Family Residential Centers (there are currently three of them, in Texas and Pennsylvania, that can house roughly 3,000 people).

Typically, group homes, foster homes and other facilities that house dependent children are licensed by state child welfare agencies. In California, the Department of Social Services has regulatory authority over children's residential facilities. But family detention facilities don't generally exist at the state level, so there's no state child welfare system to regulate them.

Under the new scheme, if no state licensing is possible, the federal government would employ an independent third party to ensure the facilities meet federal standards.

Plaintiffs' lawyers said they doubted that approach would be truly independent.

"The prospect of the Department of Homeland Security establishing its own self-licensing system is completely unacceptable and inconsistent with the Flores settlement agreement," said Desai.

3. Legal Oversight by Children's Advocates Will End

If the new regulations take effect, plaintiffs' attorneys in the Flores case will no longer have the right to monitor children's shelters, family detention centers or Border Patrol stations, as they do now.

The Flores agreement states that "Plaintiffs' counsel may request access to any licensed program's facility in which a minor has been placed ..." Lawyers representing detained children routinely do inspect the facilities, and they've repeatedly brought substandard conditions to the attention of the court. Last year, Judge Gee appointed an independent monitor to report back to her on inadequate conditions for children.

The court's oversight will end if the Flores agreement terminates.