Finally, a Final Rule to Fix the Flores Loophole

But there are hurdles ahead

By Andrew R. Arthur on August 22, 2019

The administration announced yesterday that it was going to issue a rule that would finalize a regulation that would replace the settlement agreement in Flores v. Reno (the Flores Settlement Agreement or FSA), an almost 22-year-old action that has been subject to numerous "interpretations" by the courts over more than two decades. One of the decisions in that case is the key contributor to the huge numbers of family units (FMUs, that is, an adult migrant traveling with a child or children) that have flooded the Southwest border over the last two years. This administrative action, while overdue, will alleviate the strain on U.S. Customs and Border Protection (CBP) resources, and in particular U.S. Border Patrol agents and facilities, that this massive influx of illegal migrants has caused.

As my colleague Matt Sussis explained in 2015:

An Obama-appointed federal district court judge in California, Dolly Gee, ordered that the Obama administration must release detained children and their mothers who were caught crossing the border illegally, saying that detention centers in Texas had failed to meet the Flores standards.

This was a major development — Gee had now expanded Flores to cover not only unaccompanied children, but also accompanied children.

In fact, Judge Gee even went a step further. Flores calls on the government to release children "without unnecessary delay". Gee interpreted that to mean 20 days. In other words, now all minors in detention, whether or not they were with their parents, couldn't be detained for more than three weeks. This ruling laid the groundwork for the current crisis at the border, in which children are released while their parents can still be detained awaiting hearings — hence, the "separation" of families. The alternative is simply releasing the entire family after three weeks or less. In other words, "catch-and-release".

The next year, in 2016, Ninth Circuit Judge Andrew Hurwitz, joined by judges Michael Melloy and Ronald Gould, reaffirmed that Flores applies to all children, regardless of whether they're accompanied — although they did reverse the notion that parents have an affirmative right of release. [Emphasis added.]

The administration's actions have been long-awaited. In September 2018, I wrote about a notice of proposed rulemaking (NPRM) on the "Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children [UACs]" that the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) issued on September 7, 2018. That NPRM set the stage for the issuance of the final rule.

Echoing Sussis' statements, as I explained at that time, the 2015 district court order "has complicated the Trump administration's efforts to end 'catch and release' of alien parents entering illegally with their children along the Southwest border." Has it ever.

In April 16, 2019, the Homeland Security Advisory Council's CBP Families and Children Care Panel issued a "Final Emergency Interim Report". That bipartisan panel found:

There is a real crisis at our border. An unprecedented surge in [FMU] migration from Central America is overwhelming our border agencies and our immigration system. This crisis is endangering children. In too many cases, children are being used as pawns by adult migrants and criminal smuggling organizations solely to gain entry into the United States (U.S.). Because 40% of [CBP USBP] resources are currently absorbed in dealing with this crisis, the USBP is not able to effectively manage its other border security missions — apprehending migrants illegally seeking to evade detection, including criminal aliens and those who pose a public safety or national security threat, uncovering instances of trafficking, fraudulent family relationships and other criminal activity among this population, and monitoring the border for drug smuggling and other contraband. To cover this gap, CBP will need to re-assign an increasing number of CBP officers stationed at ports of entry to assist the USBP in handling the surge in FMU migration. [Emphasis added.]

Why is there this "unprecedented surge in" FMU migration that is "overwhelming our border agencies" and "endangering children"? The report explained: "By far, the major 'pull factor' is the current [DHS] practice of releasing with a [notice to appear (NTA)] most illegal migrants who bring a child with them."

And why does DHS have a practice of releasing most illegal migrants who bring a child with them? The report explained that U.S. Immigration and Customs Enforcement (ICE) Enforcement Removal Operations (ERO) only has detention space for 2,500 FMUs, capacity that is "woefully inadequate given the surge in FMU migration over the past year".

To put into context how "woefully inadequate" that detention space is, according to CBP statistics, 84,491 FMUs were apprehended by the Border Patrol in May 2018 alone. For a variety of reasons, that number has fallen to "only" 42,566 in July 2019 (almost 60 percent of the total number of aliens apprehended by Border Patrol that month).

Of course, the White House has little impetus to push for more long-term FMU detention space, as long as the FSA is in effect — FMUs will have to be released after 20 days, anyway. The ultimate regulation will address that issue, as set forth below.

The bipartisan panel continued:

The crisis is further exacerbated by a 2017 federal court order in Flores v. DHS expanding to FMUs a 20-day release requirement contained in a 1997 consent decree, originally applicable only to unaccompanied children (UAC). After being given NTAs, we estimate that 15% or less of FMU will likely be granted asylum. The current time to process an asylum claim for anyone who is not detained is over two years, not counting appeals.

"Exacerbated" is one word. "Caused" would likely be the word I would use, but this was a bipartisan panel report that had to receive agreement from both sides. Stated another way, the FSA is encouraging foreign national parents to bring their children with them as they travel to and enter the United States illegally, as pawns to be used to secure their release.

And they do so at great risk to those children, as the panel explains: "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." Not that the children are alone in suffering harm. Among the findings in that report:

  • 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 children 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 vs. the 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.

Plainly, the current situation at the border requires strong action from the U.S. government.

The legislative branch has not been helpful, however. Members of Congress, and in particular congressional Democrats, have been resistant to even the most reasonable and necessary increases in resources at the border, such as detention space, as I have recently noted. This is especially true of family detention beds. That leaves it up to the executive branch and its issuance of the regulation that will end the FSA.

Although the full parameters of the final regulation are not clear, Acting DHS Secretary Kevin McAleenan provided some glimpses in a press conference Wednesday announcing the rule. First, that rule will establish a national standard of care for the custody of children and families in "Family Residential Centers" (FRCs). Most states lack such standards, and as the acting secretary explained:

A national standard of care ensures that care in custody of children and families is not a policy decision, and should not be subject to the ebbs and flows of state and local politics. Instead, all children in the Government's care will be universally treated with dignity, respect, and special concern, in concert with American values and faithful to the intent of the settlement.

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.

Those FRCs will, in addition to other amenities, have video teleconferencing facilities that will enable the FMUs to receive due process from immigration judges while detained, as well as separate space where alien respondents in removal proceedings can meet with their attorneys, and 24-hour access to interpreters.

In addition, the final rule will end the FSA loophole that requires accompanied children (and therefore their parents and guardians) to be released after 20 days. The acting secretary explained:

Prior to the 2015 court ruling that restricted our use of the 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.

This is all true, and I should know: I was an immigration judge with jurisdiction over one of the few FRCs that existed during my tenure, the Berks Family Shelter near Reading, Pa.

Closing that loophole, in turn, "will restore integrity to our immigration system and eliminate the major pull factor fueling the current crisis." These are facts, as the foregoing explains.

Finally, that rule will perform the critical task of protecting the children who are used by their parents to gain access to the United States. Interestingly, in addition to the harms listed above that children suffer during the journey of illegally entering the United States, McAleenan added the following shocking facts and statistics:

So far this fiscal year, Border Patrol agents have identified approximately 6,000 aliens who have fraudulently presented as members of family units at the border. In response, U.S. Immigration and Customs Enforcement has conducted two DNA-testing pilot programs that have definitively identified dozens of cases in which children had no familial relation to the adults accompanying them.

In the first operation — Operation Double Helix 1.0 — 16 out of 84 family units were identified as fraudulent based on negative DNA results. And in the second —Operation Double Helix 2.0 — 79 of 522 family units have been identified as fraudulent based on negative DNA results, to date. The egregious examples of migrants posing as family units that ICE has uncovered demonstrates the necessity of the new rule.

In May of this year, an alleged mother traveling to the United States with a two-year-old child was interviewed after U.S. Customs and Border Patrol agents noticed inconsistencies in birth certificates. Over the course of the interview, the mother admitted that the child was in fact not her own — and that the child had been left behind by its mother, who crossed into the United States in February, to be used for her entry into the United States.

And in June of this year, an alleged mother traveling to the United States with a four-year-old child admitted, after being interviewed for inconsistencies in birth certificates, that she had no familial relationship with the child. She stated that she had paid over $3,000 USD for the smuggling arrangement.

Such are the wages of congressional inaction.

There are still hurdles for the regulation to overcome before it can address these critical issues. First, as the New York Times noted, the regulation "requires approval from a federal judge before it can go into effect", in this case the aforementioned Judge Gee, and is "expected to be immediately challenged in court". It is difficult to imagine that anyone would want the untenable humanitarian disaster at the border to continue, but apparently some do, and activist judges have shown no hesitancy in issuing injunctions against the Trump administration over the past two years.

Then there is the issue of funding. As noted, congressional Democrats have been opposed to family detention in the past, and will likely mount any number of challenges to it in the future.

All of that said, without the final rule, none of the needed improvements outlined by the acting secretary will be possible. The clock starts now.