Trump Administration Announces New Rule to "Implement" the Flores Settlement

The Trump administration this morning made the following announcement:

"Today, Acting Secretary of Homeland Security Kevin K. McAleenan and Secretary of Health and Human Services Alex Azar announced a final rule that finalizes regulations implementing the relevant and substantive terms of the Flores Settlement Agreement (FSA). Importantly, the rule will allow for termination of the FSA, and allow DHS and HHS to respond to significant statutory and operational changes that have occurred since the FSA has been in place, including dramatic increases in the numbers of unaccompanied children and family units crossing into the United States.

Large numbers of alien families are entering illegally across the southern border, hoping that they will be released into the interior rather than detained during their removal proceedings. Promulgating this rule and seeking termination of the FSA are important steps towards an immigration system that is humane and operates consistently with the intent of Congress.

The Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) are issuing final regulations that implement:

• --  The relevant and substantive terms of the FSA (resulting in the termination of the FSA). 
• --  The way HHS accepts and cares for unaccompanied alien children.
• --  The requirements that help ensure that all alien children (both accompanied minors and unaccompanied alien children) in the Government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors. 
• --  The ability of U.S. Immigration and Customs Enforcement (ICE) to maintain family unity by holding families with children in licensed facilities or facilities that meet ICE’s family residential standards, as evaluated by a third-party entity engaged by ICE (in the event that licensing is not available through the State).
• --  A pathway to ensure the humane detention of families while satisfying the goals of the FSA.
• The related provisions of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), including the transfer of unaccompanied alien children to HHS within 72 hours of the UAC determination, absent exceptional circumstances.

“Today, the government has issued a critical rule that will permit the Department of Homeland Security to appropriately hold families together and improve the integrity of the immigration system,” said Acting Secretary McAleenan. “This rule allows the federal government to enforce immigration laws as passed by Congress and ensures that all children in U.S. government custody are treated with dignity, respect, and special concern for their particular vulnerability.”

“The Department of Health and Human Services, through our Office of Refugee Resettlement, provides quality and compassionate care for unaccompanied alien children who are referred to our custody,” said Secretary Azar. “In this rule, we are implementing the relevant and substantive portions of the Flores Settlement Agreement pertaining to standards for the temporary care, placement, and release of those minors. As before, HHS will continue to protect the safety and dignity of unaccompanied alien children in our custody as we seek to place them with a parent, relative, or other suitable sponsor.”

The FSA always contained provisions for its implementation in regulations and its termination – originally, it was to remain in effect no more than five years; and then, in 2001, the parties agreed it would terminate after a final rulemaking.  Beginning in 2005, prior administrations repeatedly announced plans for a rule.  No prior administration, however, issued a final rule.  With this achievement now complete, the FSA will terminate by its own terms, and the Trump Administration will continue to work for a better immigration system.

The rule takes effect in 60 days."  (emphasis added).

According to  Maria Sacchetti for the Washington Post,

"The new rule would eliminate a 20-day cap for detaining migrant children and create a new licensing regime that would make it easier for federal officials to expand family detention nationwide.

Although the rule is set to take effect 60 days after it is published, officials expect the implementation to last longer. Advocates have vowed to challenge the rule in court, which will put the change in front of U.S. District Judge Dolly M. Gee, who denied the administration’s request last year to extend family detentions."

KJ