SILVER SPRING, Maryland — CLINIC condemns the joint final rule issued Aug. 23 by the Departments of Homeland Security and Health and Human Services that allows the federal government to hold immigrant children in family detention indefinitely. 

The rule is intended to end the Flores Settlement Agreement, which for over two decades, has protected children in immigration custody by guaranteeing them the least restrictive setting. Courts have interpreted this rule to limit family detention to a maximum of 20 days in facilities that are not state licensed to provide child care. The federal government has been unable to obtain state child care licenses for these facilities. “These unlicensed facilities are essentially jails,” said Anna Gallagher, executive director of CLINIC. “Children should never be held in jails. Period. Traumatizing children to score political points is repugnant. This is a shameful day in U.S. history.”

Under the new rule, Immigration and Customs Enforcement can use its own licensing system, gutting a fundamental principle of child protection established by the Flores settlement. Seven children have died in federal immigration custody since 2018, highlighting ongoing problems with how the government has managed its child care responsibilities.

The government claims detention is necessary to ensure asylum-seeking families appear in court. CLINIC has documented, however, that in absentia removal numbers reflect the consequences of a confusing immigration system that vulnerable, pro se asylum seekers, especially children, are unable to navigate. 

The government received more than 98,000 comments in response to the proposed rulemaking, including CLINIC’s own comments describing how the proposed regulations were unlawful and immoral. Despite broad opposition, the government has moved forward with the rule, making only minor revisions to the final regulations.

Judge Dolly Gee, in the Central District of California, oversees the Flores case. The plaintiffs in the Flores case have one week following publication of the final regulations to brief the court on whether the regulations comply with the Floressettlement. If the judge rules in the government’s favor, the new rules would go into effect in 60 days.