HIAS Objects to Policies that Would Harm Immigrant Children

Today HIAS submitted a public comment objecting to the Trump Administration’s proposed changes to the Flores Settlement Agreement (FSA), which set a national standard for the detention, processing, and release practices relating to immigrant youth and children. The proposed rule change would dismantle the Flores Settlement Agreement, eliminating protections and regulations for the treatment of children in detention.

HIAS believes the proposed regulatory changes undermine the critical protections of the FSA, and the proposed changes are yet another action by the administration to put anti-immigrant policies in place and to criminalize immigrants.

Responding to the expansion of family detention centers, HIAS wrote:

“As HIAS provides direct representation to children seeking refuge in the U.S., we are familiar with the trauma they face as a result of experiences in their home country....Overriding the Flores Settlement Agreement and implementing longer detention periods will only further put this young and extremely vulnerable population at greater risk.”

Read the full text of the comment below:

November 5, 2018

Debbie Seguin
Assistant Director
Office of Policy
U.S. Immigration and Customs Enforcement
Department of Homeland Security
500 12th Street SW
Washington, DC 20536

Re: DHS Docket No. ICEB-2018-0002, RIN 0970-AC42 1653-AA75, Comments in Response to Proposed Rulemaking:

I am writing on behalf of HIAS, the global Jewish refugee protection agency, to express our strong opposition to the Department of Homeland Security’s (DHS) Notice of Proposed Rulemaking on the Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, as published in the Federal Register on September 7, 2018.

Since our founding in 1881, HIAS has helped to welcome 4.5 million Jews, as well as thousands of refugees of all faiths from around the world to the United States. One hundred and thirty-seven years later, we still advocate for the rights of refugees and asylum seekers and provide countless services in partnership with our 17 affiliates across the country to help support these new Americans as they work to rebuild their lives in the United States.

The American Jewish community would not exist if the United States had not offered our ancestors the opportunity to seek safety and rebuild our lives. Many of us do not need to look far into our history to find that the immigrants of today are not much different from those of our families. We believe that immigrants deserve to have their human rights and dignity respected, and it is because of that belief that we write to object to these proposed rules.

Expanding the Use of Family Detention

A core principle and requirement of the Flores Settlement Agreement (FSA) is that migrant children must be released from detention within 20 days. The proposed rule would allow for indefinite detention of children accompanied by a parent in immigration facilities pending resolution of their and their parents’ immigration proceedings, which can last months, and even years. It would also allow them to be housed in Family Residential Centers (FRCs), jail-like facilities that do not have the proper State child welfare licensing for the long-term housing of children.

Detaining families, and eliminating the basic standards for child-welfare will only further compromise the treatment of migrant families, and exacerbate the trauma that many of these individuals have already suffered in their home countries, or on their journey, before arriving in the United States. It has been proven that detained immigrants suffer negative physical and emotional symptoms from detention, including anxiety, depression and posttraumatic stress disorder. Children are especially vulnerable, with even short periods of detention causing psychological trauma which can manifest itself as chronic anxiety, depression, and sleep and digestive disturbances. These traumas can, in turn, cause physical, cognitive, and emotional developmental delays. For children, unnecessary detention, even with a parent, can have a lasting impact.

As HIAS provides direct representation to children seeking refuge in the U.S., we are familiar with the trauma they face as a result of experiences in their home country. The proposed rule will give DHS authority to self-license Family Residential Centers as spaces acceptable for children, and the stricter standards for parole will mean that children spend more time in detention, despite known alternatives that provide children with the stability and resources they require. The success of programs like Immigration and Customs Enforcement’s Family Case Management Program (FCMP) show that alternatives to detention not only exist but are effective at ensuring that individuals appear at their immigration proceedings, at a fraction of the cost to taxpayers than that of family detention. Especially for asylum seekers with credible asylum claims, and for the many who have family, friends, and supportive communities in the United States, there is an incentive to comply with the necessary legal requirements to be able to stay in the U.S.

Overriding the Flores Settlement Agreement and implementing longer detention periods will only further put this young and extremely vulnerable population at greater risk.

Deterring vulnerable individuals from seeking safety in the United States

A central part of the Administration’s argument as to why the proposed rule is necessary is that the ability to utilize widespread detention for children and their parents would deter families from coming to the United States to seek protection. Seeking asylum at the border is not illegal. Refugees, like the many families fleeing the Northern Triangle region of Central America, will continue to flee violence to save their lives and those of their children. These are not people who want to leave their homes, but are forced to, and will seek protection where it is available. This is evidenced by attempts by past administrations to deter asylum seekers using similar tactics which proved to be unsuccessful at curbing the migration flow.

As the wealthiest and most powerful country in the world, the United States is more than equipped to expeditiously process and grant asylum to those with credible claims. The right to seek asylum is a general principle of both U.S. and international law, and those who seek protection in the U.S. should not be treated as criminals. Attempting to deter asylum seekers using painful tactics such as family separation, or threats of indefinite detention - which could have lasting negative effects on the mental and physical health of adults and children alike - is a flawed policy.

These proposed regulations, shielding the administration’s actions from view and scrutiny, are written with the intent and impact of directly harming migrant children, specifically those from Central America, under a perverse theory of deterrence that has been both proven ineffective and decried as unlawful by a federal judge. They undermine the very object of an agreement the government willingly made twenty years ago and insult the dignity of the children the Flores Settlement was designed to protect.

Denied Justice

The proposed regulations do not “implement” the Flores Settlement’s terms; instead, they undermine the critical protections the Settlement offers. This is yet another action by the administration to put anti-immigrant policies in place and to criminalize immigrants. Policies that implement indefinite detention for the duration of immigration proceedings impede people’s ability to seek legal counsel and have a significant impact on due process. That is why only 14 percent of detained immigrants are able to secure counsel compared to 37 percent of all immigrants. When represented in immigration court, individuals are significantly more likely to be successful in proving that they qualify for asylum or other types of relief. Eviscerating procedures that ensure the law is applied fairly, disproportionately impacts immigrant communities, especially Central Americans, who are detained at high rates. The proposed rule undermines children and family’s rights and is yet another example of an attempt to enact punitive immigration policy on the basis of fear and bigotry.

Detaining mothers and fathers with their children create barriers to legal representation for people who should receive protection in the U.S. Beyond punishing families who have already been through a difficult journey to arrive in the U.S., there is no reason to implement rule changes that would increase the detention of children who are here to seek protection. This rule change harms vulnerable children, and would further hurt their chances of finding a safe place in our country.


For the reasons detailed above, DHS and the Department of Health and Human Services (HHS) should immediately withdraw their current proposal, and dedicate their efforts to advancing policies that safeguard the health, safety, and best interests of children and their families, not least through robust, good-faith compliance with the Flores Settlement Agreement.

Melanie Nezer
Vice President of Public Affairs, HIAS


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