California, 18 Other States, and D.C. Sue over Flores Regulations

My take: Insufferable, politically motivated, taxpayer-funded bloviation

By Andrew R. Arthur on August 28, 2019

In a splashy press release, California Attorney General Xavier Becerra announced that his state, along with 18 other states and the District of Columbia, were filing a complaint in the U.S. District Court for the Central District of California challenging the recently announced Flores regulations. That action, likely the first of many, was widely anticipated by many, including me. Will it succeed? For the good of those it purportedly seeks to help, hopefully no.

Here's a taste:

The Rule's imposition of indefinite and prolonged detention of children and families in prison-like conditions will harm the mental and physical health of children and their parents, many of whom will ultimately be released to communities within the States. The long-term impact of these harms will be borne by the States, which have robust programs and services to support the mental and physical health of their residents, including newly arrived immigrants.

"Indefinite and prolonged"? Here is what the Acting Department of Homeland Security (DHS) Secretary, Kevin McAleenan, stated in announcing the rule:

Prior to the 2015 court ruling [in Flores v. Lynch] that restricted our use of the [family residential centers, "FRCs"], immigration proceedings averaged less than 50 days, granting those with meritorious claims prompt relief and permission to stay in the U.S., while swiftly repatriating those meritless claims — who have comprised a substantial majority of the families being processed.

"Indefinite" is a subjective term. When you get on the phone with your local cable provider and work your way through the tree to speak to a live human being, that is technically "indefinite", because you do not know when the call is going to end. This term seems to have been thrown around a lot as relates to the Flores regulation lately because it is, I guess, "scary". All removal proceedings in immigration courts are technically "indefinite", because you never know when the judge is going to rule. I never see anyone complain about the current system of non-detained removal proceedings being "indefinite", because in almost all cases, the alien respondent is getting what he or she wants: to remain in the United States "indefinitely".

You do not need to trust me on this latter point. As the Supreme Court recognized in INS v. Doherty, "in a deportation proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States."

The indefinite nature of removal proceedings is only at issue when the responded is detained. Then, in the minds of Becerra and his ilk, it is insufferable. Hold that last word in mind for a moment, because I will return to it.

In the immigration context, however, as McAleenan noted, 50 days was the average detention time in a family residential center that is necessary in order for an immigration judge to hear an asylum claim filed by a family unit (FMU) in immigration court. But you don't need to trust him; I was an immigration judge in a court that heard claims (prior to the 2015 decision in Flores) from an family residential center (Berks Family Shelter in Pennsylvania), and that sounds correct, if a little on the high side. I was not keeping track, however.

So the question becomes whether 50 days is really "prolonged". Reasonable minds can disagree, but I would argue no, particularly in light of the claims that most of the respondents in those cases have made and will make.

In essence, most family unit claims are premised on harm or threatened harm inflicted by a criminal organization (usually a gang) on them, either for extortion, recruitment, or to prevent them from going to the police about other mistreatment. The United States is the place in which they seek to make those claims, because they allege that the local police where they are from are corrupt, inefficient, or in league with the criminal organization in question.

With that in mind, is 50 days of detention really "prolonged"? If the argument is that you are fleeing imminent harm, and that you are in a place where that harm cannot touch you, why would it be? Especially in light of that fact that, as McAleenan noted:

The facilities that will be used to temporarily house families under this rule are, appropriately, fundamentally different than the facilities where migrants are processed following apprehension or encounter. They are campus-like settings with appropriate medical, educational, recreational, dining, and private housing facilities.

For example, the first Family Residential Center in Berks, Pennsylvania, has suites where each family is housed separately. Furniture, bedding, towels, basic clothing, and toiletries are provided. There is a large community "living room" that has a big-screen television, large cushioned couches and lounge chairs, a gaming area and a separate library that contains books, smaller television sets, video games, and board games. The facility also has an entire wing dedicated to classroom learning where minors at the facility go to school five days a week. Another wing is a medical facility where minors and their parents receive any necessary medical care, including all immunizations required for later admission to U.S. public schools. There are also phone banks to call relatives, consulates, or attorney/representatives.

In all FRCs, three hot meals a day are provided, and snacks are available throughout the day. All three FRCs offer a variety of indoor and outdoor daily recreation activities for children and adults. Indoor activities offered include a variety of sports, group exercise classes, arts and crafts classes, movie nights, and seasonal and holiday-themed activities. Outdoor recreational facilities include soccer fields, volleyball courts, and play structures.

So, the choice is between a crime-ridden neighborhood in the home country policed by corrupt officials where the threat of harm hangs over the respondents every day, or housing (at government expense) in a "campus-like setting" where you can see a dentist and play soccer. That hardly seems like a choice at all, and is hardly the "prison-like conditions" described in the complaint.

Actually, to be fair, there is a third choice: The family unit can be released into the United States, where they are dependent upon government largesse and family, friends, and community organizations for medical care, nutrition, education, recreation, and "movie nights". Who pays for that?

Usually, the citizens of the several states, including California, "Massachusetts, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia", plaintiffs in the suit. So, in essence, citizens of those states are paying twice: once to file the lawsuit, and next to take care of the family units "indefinitely" while their cases wend their way through the immigration courts, and likely thereafter, because U.S. Immigration and Customs Enforcement (ICE) lacks the resources (thanks to Congress) to actually execute final orders of removal against most aliens under final orders except for those truly dangerous to the community.

Respectfully, I would challenge Becerra and the state that he "represents" to provide the sorts of amenities that the federal government is undertaking under the regulation. Not that he is the only official from the Golden State to weigh in on the issue. Consider this, from the aforementioned press release:

"Yet again, President Trump is disregarding basic human rights and using helpless immigrant children as political pawns to further his ideological agenda. California will emphatically assert itself to protect the welfare and safety of all children, regardless of where they come from or the color of their skin," said Governor [Gavin] Newsom [D-Calif.].

I can guarantee that my birth state of Maryland (as noted, also a plaintiff) will not be able to provide such amenities. Consider this:

Baltimore's teacher union is calling for fans to be donated as classrooms are expected to reach sweltering temperatures when students return next month, but the district says electrical infrastructure may not be equipped to handle it.

About a third of public school buildings in the city lack air-conditioning. Union President Diamonté Brown tells The Associated Press the organization hopes to hand out 500 pedestal fans.

But Baltimore City Public Schools Chief Operations Officer Lynette Washington says some buildings can't withstand several fans plugged in.

Any comment on the foregoing would simply gild the lily. I would respectfully ask Maryland Attorney General Brian Frosh (who has also joined the lawsuit) whether the conditions outlined for detention by McAleenan are better than the conditions in the public schools in the largest city in his state. As he stated in announcing (at the taxpayer's dime) his role in the lawsuit: "Our law and our policy have, for decades, required humane treatment of children." Really?

By the way. Frosh also piles on the "prison-like conditions" in which children would be held. McAleenan's depiction does not sound like the prisons in the Free State. Consider the fact that Governor Larry Hogan (R-Md.) had to move to close down the Baltimore City Men's Detention Center in 2015. From Think Progress:

He said the city will be moving the 1,092 male inmates to other facilities and possibly tearing down the pre-Civil War building that is "literally falling apart." The facility, located east of downtown Baltimore, is currently the only city prison in the country that is run by a state government.

While talking about the history of the prison, Hogan described the gang violence that has been rampant in the facility, saying "inmates were literally running this prison" with the help of a number of employees entangled in the corruption.

What kind of corruption? From CBS News:

Four female prison guards in Baltimore fell pregnant to the same inmate, according to authorities who have busted a major smuggling gang inside the jail system.

Two of the women tattooed the inmate's name on their bodies and he showered three of them with expensive gifts including cars and jewelry.

You cannot make this stuff up. But back to California. Becerra and Newsom may themselves have a skewed view of prisons. From SF Gate: "California ranks dead last in America for its spending on students versus spending on prisoners, according to a recently released report. ... The difference of $53,147 was the largest of any state, according to the report."

As for the "harm [to] the mental and physical health of children and their parents" in the proposed family residential centers, consider the fact that, as McAleenan made clear, one major reason for the Flores regulation is to dissuade those family units from undertaking the dangerous journey to the United States to begin with: "This single ruling [the 2015 decision in Flores] has substantially caused, and continued to fuel, the current family unit crisis, and the unprecedented flow of Central American families and minors illegally crossing the border — until today."

Lest you doubt the dangers of that journey and think the proposed regulation is simply a racist attempt by the Trump administration to stem this flow (as Newsom suggests), consider the following, from the "Final Emergency Interim Report" from the Bipartisan CBP Families and Children Care Panel:

  • Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.
  • Criminal migrant smuggling organizations are preying upon these desperate populations, encouraging their migration to the border despite the dangers, especially in remote places designed to overwhelm existing USBP infrastructure, and extorting migrants along the way, thereby reaping millions of dollars for themselves and the drug cartels who also charge money to cross the border.
  • A substantial number of families and children are entering our country in remote areas of the border versus the [ports of entry, "POEs"], enduring dangerous and terrifying crossings in remote desert areas, across rivers, over fences, and through razor wire. These children increasingly require significant personal and medical care that exceeds the ability and capacity of CBP even with their current patchwork of contracted assistance. Despite CBP's creative and humane attempts to care for these children during their confinement, CBP facilities, both at USBP stations and POEs, are grossly inadequate.
  • "Children who are crossing the borders of the U.S. are at great risk for multiple medical problems, which include but are not limited to, dehydration, malnutrition, infections, psychological trauma, physical injuries and all aspects of child maltreatment."
  • Children are being exploited and placed in danger in many ways –
    • Adults fraudulently claiming parentage to a child to gain entry to the U.S. are increasing.
    • Some children are being re-cycled by criminal smuggling organizations, i.e. returned to Central America to accompany a separate, unrelated adult on another treacherous journey through Mexico to the U.S. border.
    • Human traffickers have extracted additional fees as a form of indentured servitude from FMUs who were released with NTAs and made their way to the interior of the U.S. The risk for commercial sexual exploitation of these children and teens is predictably high and will be very difficult to prevent after transport or release into the interior U.S.

That is insufferable, by definition. And yet, many politicians in America want those children and families to continue to suffer it.

The question then is, if Becerra, Newsom, Frosh, and the others are so interested in the welfare of children, why wouldn't they want to stop these horrors? The only answer I can think of is "politics". One last offer of proof for this thought: The headline of Becerra's announcement is "Attorney General Becerra Leads Multistate Lawsuit Opposing the Trump Administration's Rule Allowing Prolonged Detention of Children". (Emphasis added.) "Opposing [the rival party's] Administration[]" is the definition of politics.

That is also insufferable, as is the sanctimony.