In 1985, advocates concerned about the treatment of children in immigration custody sued the federal government, ultimately leading to the formation of the 1997 Flores Settlement Agreement (FSA), a court supervised settlement agreement that required the government to minimize the detention and length of detention of immigrant children, expedite their reunification with family members in the United States, detain children in the least restrictive settings, and implement thoughtful standards of care that prioritize the best interests of the child.

On September 7, 2018, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) issued a notice in the Federal Register (83 Fed. Reg. 45486-45534) proposing to amend regulations relating to the apprehension, processing, care, custody, and release of immigrant children and terminating the 1997 Flores Settlement Agreement (FSA).

The Niskanen Center believes that regulations establishing criteria that allows for prolonged detention of children, that reduces the number of children who benefit from extra protections by virtue of status as unaccompanied minors, and that weakens standards for detention facilities runs contrary to the public interest and to the interest of the children in question. The president has tasked the Department of Homeland Security with protecting the interests of America and its laws; replacing the 1997 Flores Settlement Agreement (FSA) in this way is contrary to that objective.

The Niskanen Center appreciates the opportunity to comment and intends to (I) show that the proposed rule lacks the required justification pursuant to the Administrative Procedures Act (APA) and (II) that the proposed changes significantly reduces key protections for children in custody in violation of the Flores Settlement Agreement.

For the foregoing reasons, the Niskanen Center believes the proposed regulation could be revised to address the persistent concerns surrounding the detention of children and their families, but absent significant revision, we strongly encourage DHS not to replace the Flores Agreement with this regulation.

Full comment available here.

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