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 - Comments on The Immigration and Customs Enforcement Bureau Proposed Rule Regarding the Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children

Dear Ms. Seguin,

Brooklyn Defender Services (“BDS”) submits these comments to the Notice of Public Rulemaking regarding the Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45486, issued on September 7, 2018 (hereinafter, the “Proposed Rule”), which are intended to effectuate the Flores Settlement.

BDS is a full-service public defender office in Brooklyn, New York, representing nearly 35,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children, or face deportation. BDS also provides a wide range of other services to our clients, including help with housing, education, employment, and representation in affirmative immigration applications. Since 2009, BDS has counseled, advised or represented more than 10,000 immigrant clients, including many under the age of 18. We are a Board of Immigration Appeals-recognized legal service provider.

About a quarter of BDS’s criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and, therefore, at risk of deportation or losing the opportunity to obtain lawful immigration status as a result of their criminal or family defense case. Our criminal-immigration specialists provide support and expertise on thousands of such cases. In addition, BDS is one of three New York Immigrant Family Unity Project (“NYIFUP”)1 providers and has defended more than 1,000 people in detained deportation proceedings since the inception of the project three years ago. Furthermore, BDS has a dedicated Immigrant Youth and Communities Team that represents Brooklyn immigrants applying for lawful immigration status and in non-detained removal proceedings. This includes representing young clients in their pursuit of Special Immigrant Juvenile Status (“SIJS”) or Deferred Action for Childhood Arrivals (“DACA”), as well as humanitarian relief such as asylum and Temporary Protected Status. We regularly provide Know Your Rights trainings for the community, including information on the risks of immigration enforcement and family preparedness planning. In addition, New York State contracted us to provide individualized advice to potential sponsors— individuals to whom unaccompanied minors in government custody may be released—regarding the immigration risks of undergoing the sponsorship application process, including background checks.

Across its practice areas—criminal defense, family defense, and immigration—BDS employs experienced attorneys and social workers who specialize in representing adolescents and advocating for their unique needs. It is based on our collective work with thousands of adolescents and their family members that we offer these comments.

Relevant Background

Flores v. Meese, No. 85-cv-4544 (C.D. Cal.), a 1985 class action, alleged violations of the equal protection and due process rights of children held in United States Immigration and Naturalization Service (“INS”) custody in the Western Region of the United States. The class asserted a range of allegations, including that children were held for months in unsafe and unsanitary jail cells, housed with unrelated adults, and, in certain situations, strip searched. The 1997 settlement of the case (the “Flores Settlement”), Flores v. Reno, No. 85-cv-4544-RJK(Px) (approved Jan. 28, 1997), set forth a nationwide policy for the detention, release, and treatment of minors in government custody, including, inter alia:

• Creating a general policy in favor of placing children in the “least restrictive setting” that is in the best interests of the child and appropriate to their age and any special needs;

• Creating a presumption in favor of releasing minors to approved sponsors without unnecessary delay, unless detention was necessary to ensure the child’s safety or appearance in court; and

• Requiring placement of children who are not released into licensed, non-secure facilities that meet certain standards.

In 2001, the Parties agreed the Flores Settlement would terminate 45 days following the government’s publication of final regulations implementing the agreement. Flores Stipulation, Dec. 7, 2001.

The Homeland Security Act of 2002 (“HSA”) created the Department of Homeland Security (“DHS”) and entrusted the care and custody of unaccompanied minors to the Department of Health and Human Services (“HHS”). See 6 U.S.C. § 279. HHS assigned responsibility for the care and custody of unaccompanied minors to the Office of Refugee Resettlement (“ORR”). As a result, the Flores Settlement terms now protect children in custody of both DHS and HHS/ORR. The congressional intent behind transferring care to HHS was to

(a) avoid the inherent conflict of interest where those responsible for enforcement against the child were also responsible for the custody and care of the child, and (b) provide the services necessary to address the special needs of newcomers and traumatized children.2

Thereafter, the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”) of 2008 codified the Flores Settlement’s “least restrictive” language, providing that “[A]n unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child.” 8

U.S.C. § 1232(c)(2)(A).3 The statute also, inter alia:

Established guidelines for safe and secure placements for children, including providing when home studies should be conducted for potential sponsors;

• Mandated the non-adversarial adjudication of unaccompanied children’s asylum claims before the United States Citizenship and Immigration Services (“USCIS”) Asylum Office in the first instance; and

Provided for access to legal services through pro-bono legal representatives.

Comments on the Proposed Regulations

BDS opposes the Proposed Rule as it would reduce the current protections afforded to immigrant children under the Flores Settlement and undermine congressional intent to protect unaccompanied children by:

• Exposing children to the trauma of prolonged detention by limiting pathways to release and hampering reunification with family members;
• Detaining children in increasingly dangerous conditions of confinement by reducing oversight of detention centers; and
• Placing children at heightened risk by lowering the barriers to strip children of their unaccompanied minor status.

This Proposed Rule is a veiled effort, not to protect children’s welfare, but rather to punish asylum seekers and use the detention of children as an “effective enforcement tool.” See 83 Fed. Reg. at 45520.

A. The Proposed Rule Would Prolong Detention

The Flores Settlement mandates placing children in the “least restrictive setting” that is in the best interests of the child, which was codified by Congress in the TVPRA. See 8 U.S.C. § 1232(c)(2)(A). The Proposed Rule undermines the Flores policy by restricting options for children to be released and by limiting the ability of trusted adults to take responsibility for vulnerable children. A crucial part of the Flores “least restrictive setting” policy was to create a presumption in favor of releasing minors to approved sponsors “without unnecessary delay,” unless detention is necessary to ensure the child’s safety or appearance in court. This presumption in favor of release has two positive effects: It reduces the harm caused by prolonged detention and it eliminates long-term trauma to children separated from their parents or family members.

Harmful effects of family separation range from future depression, anxiety, and post- traumatic stress disorder to violent tendencies, substance abuse, and difficulty forming relationships down the line.4 The foster care system—another system in which children are separated from their family—serves as a useful analogue. Studies of the foster care system demonstrate that removing children from their parents, even in cases involving abuse or neglect, generally leads to worse outcomes for children across the board. The VERA Institute of Justice noted: “research shows that entry into foster care raises the risk of long-term adverse effects on children compared to socioeconomically similar children who are not removed, including poor school performance, homelessness, arrest, chemical dependency, and mental and physical illness.”5 Child protection-involved children tend to leave foster care with more problems than when they entered care, including significantly more behavioral problems when compared with their own pre-placement measures of adaptation. Former foster children experience additional negative life outcomes, including higher teen birth rates and lower career earnings,6 and are disproportionately more likely to experience homelessness compared to the general population.7 Thus, the trauma of family separation impacts a child long passed the period of separation.

The Proposed Rule undermines the Flores Settlement and congressional intent by making it more difficult for children to be released to their parents, families, or otherwise. In doing so, it delays reunification with family members and prolongs the unnecessary and harmful detention of children.

Proposed 45 C.F.R. § 410.810: The Flores Settlement ensures children in ORR custody the right to a bond hearing “before an immigration judge in every case, unless the minor . . . refuses such a hearing.” Flores Settlement ¶ 24. The Ninth Circuit reaffirmed last year that the statutory framework enacted by the HSA and TVPRA does nothing to terminate this right, rather it allows for immigration judges to conduct Flores bond hearings for children. Flores v. Sessions, 862 F.3d 863, 867 (9th Cir. 2017). In doing so, the Ninth Circuit emphasized that Flores bond hearings are consistent with congressional intent: “These statutes sought to protect a uniquely vulnerable population: unaccompanied children. In enacting the HSA and TVPRA, Congress desired to better provide for unaccompanied minors. Depriving these children of their existing right to a bond hearing is incompatible with such an aim.” Id. (emphasis in original).

In contravention of this right, the Proposed Rule creates a new administrative procedure over custody determinations for children in ORR custody. Under the new procedure, HHS officers will adjudicate a child’s challenge to ORR custody by determining whether the child poses a danger to the community or a flight risk. As such, HHS, which is in charge of maintaining the care and custody of the children, will become both jailer and judge. This type of conflict of interest is precisely what Congress sought to avoid in transferring the care and custody of unaccompanied children from DHS to HHS. Moreover, the administrative process set forth in the Proposed Rule raises additional due process concerns, because the determination will not be appealable to the judiciary or any neutral magistrate: The Proposed Rule provides that appeals from a HHS decision go directly to a political appointee, the Assistant Secretary for the Administration for Children and Families, instead of the Board of Immigration Appeals or a federal district court.

Proposed 8 C.F.R. § 212.5: The Proposed Rule will make it more difficult for a certain class of especially vulnerable children and families in DHS custody to be released as they await an assessment of whether they have a “credible fear” of persecution. Certain individuals who are determined to be inadmissible can be placed in “expedited removal” and physically removed from the U.S. without a judicial hearing or review.8 8 U.S.C. § 1225(b); 8 C.F.R.

§ 235.3(b). This includes parents with children arriving at the Southwest border to apply for asylum. If individuals placed in expedited removal express a fear of persecution or an intention to apply for asylum, the statute requires that a credible fear determination be conducted prior to removal to assess whether their asylum claim should be referred to an immigration judge for adjudication. 8 U.S.C. § 1225(b)(1)(A); 8 C.F.R. § 235.3(b)(4). If a credible fear determination is negative, the individual is ordered removed.

Currently, the implementing regulations of the Immigration and Nationality Act (“INA”) provide that children subject to removal—either under the expedited removal statute or with a final order—may be considered for release on parole, for urgent humanitarian reasons or for significant public benefit, so long as they are not a security or flight risk. 8 C.F.R. §§ 212.5(b), 235.3(b); see also Flores v. Sessions, No. 85-cv-04544(DMG), 2017 WL 6060252, at *14-18 (C.D. Cal June 27, 2017). The government’s practice of releasing children and their accompanying parent from detention when the child is found to have a credible fear of persecution is consistent with the Flores order, the INA, and the implementing regulations.

By amending 8 C.F.R. § 212.5, the provisions governing parole, to remove an internal cross-reference to 8 C.F.R. § 235.3(b), the Proposed Rule will significantly limit release on parole for children placed in expedited removal. The Proposed Rules admits that this change means that Immigration and Customs Enforcement (“ICE”) would use its parole authority for children “sparingly,” and result in fewer children and families receiving parole as they await their credible fear determination or a removal order. 83 Fed. Reg. at 45519. Thus, more children and families will have no choice but to endure prolonged detention if they want to exercise their right to seek asylum and be given a credible fear determination. In effect, the rule uses the detention of children to disincentivize asylum seekers from going forward with their asylum claims. Moreover, limiting the protections for children in expedited removal is even more problematic when the Administration also seeks to increase the use of expedited removal and plans to expand the categories of individuals subject to expedited removal.9

Proposed 8 C.F.R. § 410.302: For children in ORR custody, the Proposed Rule codifies the fingerprinting of sponsors and adults living in the sponsor’s household and invites comment regarding the requirements for home studies. Rather than keep families and communities safe, the codification of fingerprinting requirements for sponsors and their household members and any expansion of the home study requirements beyond what is required under the TVPRA creates additional administrative burdens and will lead to the prolonged detention of children. It places family members in the impossible situation of sharing information to help a child leave detention and placing themselves at risk of immigration enforcement.

This is particularly true in an environment in which information sharing between ORR and ICE has increased and ORR no longer has protections in place to ensure background check information of sponsors and household members is not shared with ICE. Specifically, a May 2018 Memorandum of Agreement (“MOA”) between ICE, ORR, and CBP clarified that going forward, “ICE will run background checks (criminal and immigration) and then provide that information to ORR for their determination of the suitability of the sponsor.”10 As the U.S. Conference of Catholic Bishops notes, “The MOA stipulates that ORR will also provide ICE with the name, date of birth, address, fingerprints, and any available documents or biographic information about not only the sponsor but also all adult members of the potential sponsor’s household.”11 Consequently, if a potential sponsor or someone in their household is themselves undocumented or potentially at risk for deportation, undergoing the background check may subject them to enforcement risk.12 Further complicating this matter is the fact that many low-income people in New York City live with many individuals in a single apartment because of the lack of affordable housing. If any person in the home refuses to undergo the background check for any reason, the sponsor must choose between leaving the home, often at great personal expense, or leaving their minor family member in federal detention.

B. The Proposed Rule Would Allow for Reduced Oversight of Detention Centers that House Children

Currently, family detention centers (i.e., “Family Residential Centers”) are subject to state licensing requirements and the government must limit the detention of children in unlicensed family detention centers to the minimal time possible. See Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2015); Flores v. Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015); see also Flores v. Lynch, 828 F.3d 898, 910 (9th Cir. 2016) (holding that the Flores settlement agreement applies both to minors who are accompanied and unaccompanied by their parents). These requirements minimize the risk of children being detained in inhumane conditions for prolonged periods of time. The Proposed Rule creates the option for a facility to be considered licensed if DHS employs an outside inspection entity to oversee compliance with family residential standards established by ICE. 83 Fed. Reg. at 45497. This alternative federal licensing scheme amounts to little more than an attempt to circumvent state requirements by vesting authority in government contractors and an enforcement agency rather than child development experts. The alternative licensing structure will undermine the purpose of the Flores Settlement and create the same poor conditions that resulted in the Flores lawsuit being brought in the first place.

Placing the responsibility for licensing standards at family detention centers in the hands of the federal government, belies the fact that the government has repeatedly been found to keep detained children in unsafe and inadequate conditions. Such conditions, including prolonged detention, inadequate access to food and clean drinking water, inadequate hygiene and sleeping conditions, extreme cold temperatures, abuse, and forcible overmedication, are in breach of the Flores Settlement. See, e.g., Flores, 212 F. Supp. 3d at 880-81; Flores v. Sessions, No. 85-cv- 4544(DMG), 2017 WL 6060252, at *6-12 (C.D. Cal. June 27, 2017);13 Flores v. Sessions, No. 85-

cv-4544(DMG), Dkt. No. 470 (July 30, 2018).14 Moreover, such claims are not limited to specific facilities.15 Notably, because the Judge overseeing the Flores Settlement found that “there continue to be persistent problems” in the standard of care at child detention facilities, she appointed an independent monitor to oversee compliance with the court’s orders regarding the conditions of detention for children.16 Thus, judicial oversight of the detention conditions of immigrant children, held either with or without their family, is clearly still necessary.

Moreover, DHS’s own Office of Inspector General (“OIG”) found that ICE had failed to monitor its detention facilities housing adults and allowed critical deficiencies in health and safety to persist.17 The OIG Report also found that the current independent contractor responsible for inspections in adult detention centers, Nakamoto, was inadequate and did nothing in the face of these critical deficiencies and breaches of ICE policy. Thus, it is troublesome that the government now wants to replace a state-licensing structure and judicial oversight of the detention of children, with federal licensing and inspections done by independent contractors in family detention centers, when DHS itself acknowledges this system fails to ensure the health and safety of adults in detention.

C. The Proposed Rule Would Make it Easier for DHS and ORR to Strip Unaccompanied Minors of Their Designation and, thus, Their Protections

By statute, unaccompanied minors have certain important protections, including the non-adversarial determination of their initial asylum claims at the USCIS Asylum Office and an exception to the one-year filing deadline for asylum applications. See 8 U.S.C. § 1232. The Proposed Rule would institute re-determinations of the “unaccompanied alien child” (“UAC”) status by HHS continually and by DHS each time an immigration officer encounters the individual, and provides that protections afforded to UACs cease once the UAC designation terminates. 83 Fed. Reg at 45505 (Proposed 45 C.F.R. § 410.101), 45497 (Proposed 8 C.F.R. § 236.3(d)). Therefore, children who were designated as unaccompanied at the border, but who have a parent or legal guardian available in the United States to provide care and physical custody, will be stripped of their UAC designation. Many children will lose important legal protections despite arriving as unaccompanied minors and enduring the resulting vulnerabilities and trauma. This will make it more difficult for children fleeing violence to assert their valid asylum claims, and will undermine Congressional intent in enacting the TVPRA to ensure such claims are properly assessed.

* * *

BDS strongly opposes these proposed regulations. They undermine the ability of families fleeing violence and hardship in other countries to be allowed to reunite and remain together, in the community, while they litigate their right to live, work, and support their families in the U.S.

Thank you for your attention and consideration of our concerns.

Sincerely,

Lisa Schreibersdorf

Executive Director

Brooklyn Defender Services

***

1. NYIFUP is the New York City Council-funded first-in-the-nation program providing counsel in removal proceedings to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities.

2. The Senate Judicial Committee’s Subcommittee on Immigration explained the purpose for the HSA provisions regarding the treatment of unaccompanied minors: “Unaccompanied minors deserve special treatment under our immigration laws and policies. Many of these children have been abandoned, are fleeing persecution, or are escaping abusive situations at home...Currently, INS has responsibility for the care and custody of these children. It would not be appropriate to transfer this responsibility to a Department of Homeland Security.” 148 Cong. Rec. S8180 (daily ed. Sept. 4, 2002).

3. The House Report for the TVPRA explains the act was intended to “require[ ] better care and custody of unaccompanied alien children” by HHS and “improve[ ] procedures for the placement of unaccompanied children in safe and secure settings.” H.R. Rep. 110-430, at 57 (2007).

4. See, e.g., Jamie Ducharme, ‘What This Amounts to Is Child Abuse.’ Psychologists Warn Against Separating Kids from Their Parents, TIME, June 19, 2018, available at http://time.com/5316030/kids- separation-parents-psychological-harm/.

5. Reva I. Allen, Alex Westerfelt, Irving Piliavin, & Thomas Porky McDonald, ASSESSING THE LONG TERM EFFECTS OF FOSTER CARE: A RESEARCH SYNTHESIS (Child Welfare League of America, 1997), cited in Allon Yaroni, Ryan Shanahan, Randi Rosenblum, & Timothy Ross, Innovations in NC Health and Human Services Policy: Child Welfare Policy, VERA INSTITUTE OF JUSTICE POLICY BRIEFS, Jan. 2014, available at http://www.nyc.gov/html/ceo/downloads/pdf/policybriefs/child-welfare-brief.pdf.

6. Joseph J. Doyle, Child Protection and Child Outcomes: Measuring the Effects of Foster Care, 97 AM. ECON. REV. 1583, 1584 (2007).

7. See Patrick J. Fowler et al., Pathways to and From Homelessness and Associated Psychosocial Outcomes Among Adolescents Leaving the Foster Care System, 99 AM. J. OF PUB. HEALTH 1453 (2009).

8. By statute, individuals subject to expedited removal are those who have not been admitted or paroled into the United States and have not been physically present in the United States for more than two years immediately prior to their inadmissibility determination. 8 U.S.C. § 1225(b)(1)(A). By regulation, since 2004, DHS has interpreted the statute to allow for expedited removal of undocumented immigrants who arrived at the border or who were apprehended within two weeks of arrival and within 100 miles of the U.S. land border. 69 Fed. Reg. 48878 (Aug. 11, 2004).

9. See Border Security and Immigration Enforcement Improvements, 82 Fed. Reg. 8793 (2017); John Kelly, Implementing the President's Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017).

10. U.S. Conference for Catholic Bishops, Justice For Immigrants, ORR and DHS Information-Sharing Agreement: The Unintended Consequences, 2018, available at https://justiceforimmigrants.org/what-we- are-working-on/unaccompanied-children/orr-and-dhs-information-sharing-agreement-the-unintended- consequences/.

11. Id.

12. One specific concern, for example, is that federal authorities have issued memoranda prioritizing immigration enforcement and prosecution of “alien smugglers,” a term that they have interpreted to target parents or sponsors who may have helped bring their children to the U.S. See John Burnett, ICE Has Arrested More Than 400 In Operation Targeting Parents Who Pay Smugglers, NPR: ALL THINGS CONSIDERED, Aug. 18, 2017, available at https://www.npr.org/2017/08/18/544523231/arrests-of- undocumented-parents-sparks-debate-between-federal-officials-and-immi; Camila Domonoske & Joel Rose, What’s New In Those DHS Memos on Immigration Enforcement?, NPR, Feb. 22, 2017, available at https://www.npr.org/sections/thetwo-way/2017/02/22/516649344/whats-new-in-those-dhs-memos- on-immigration-enforcement.

13. The U.S. District Court found that the government was breaching the Flores Settlement by holding children longer than 20 days in secure, unlicensed facilities, the Rio Grande Valley Sector facilities had unsafe and unsanitary conditions, and the government had failed to make repeated efforts to release children.

14. In July 30, 2018, the government was ordered to transfer all undocumented immigrant minors out of the Shiloh Residential Treatment Center in Texas, because of allegations of overmedication of children, including psychotropic drugs, and abuse. The government maintains that ORR has the authority to medicate children without parental consent, because the youth are in agency custody. See also Molly Hennessy-Fiske, Lawsuit Alleges Improper Medication of Migrant Children in Federal Shelters, L.A. TIMES, June 21, 2018, available at http://www.latimes.com/nation/la-na-immigrant-shelters-medicated- 20180620-story.html.

15. Redacted versions of documents filed under seal in support of motion to enforce the settlement set forth statements of children held in various federally contracted immigrant shelters that tell of coercive and forcible medication without parental or judicial consent, including that children were medicated for control issues rather than health conditions. Flores v. Sessions, No. 85-cv-4544(DMG), Dkt. No. 420-2 (Apr. 23, 2018).

16. Nick Watt & Jason Kravarik, Federal Judge to Appoint Independent Monitor for Detained Migrant Children, CNN, July 27, 2018, available at https://www.cnn.com/2018/07/27/us/federal-judge- independent-monitor-migrant-children/index.html.

17. DHS OIG, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, OIG-18-67, June 26, 2018, available at https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf; see also Tucker Higgins, Watchdog Slams ICE Detention Practices: Problems Went Unaddressed for ‘Years,’ CNBC, June 29, 2018, available at https://www.cnbc.com/2018/06/29/inspector-general-report-ice-dhs.html.