The Department of Homeland Security (DHS) will issue a proposed regulation on Friday designed to skirt the protections for children apprehended along the U.S.-Mexico border. The safeguards were established under the long-standing court supervised Flores Agreement, which limits the time that children can be held in detention and establishes minimum conditions for their housing.
In announcing the planned new rule, DHS said that it would insure that the immigrant children “are treated with dignity, respect and special concern for their particular vulnerability as minors.” As we all know, that is not how the children have been treated since Jeff Sessions announced the Trump administration’s “zero tolerance” policy towards newly arrived adults and children six months ago. A new regulation circumventing the limited protections offered by Flores will, if it survives legal challenges, only further endanger the lives and welfare of these most vulnerable immigrants and refugees.
The proposed regulation would allow the DHS to evade the current requirement under Flores that children be held only in state-licensed child care facilities. Under the new rule, the Trump administration would handle the licensing and oversight of facilities housing detained children, and the state child welfare watchdogs would be cut out entirely.
We know what horrors these children — many refugees from gang violence — were subjected to under the old rules. Even with both federal and state involvement in overseeing these facilities, very young children were housed in cages, denied medical care, repeatedly lied to about their legal situation, and sexually harassed and molested.
Removing the responsible state agencies from regulating these facilities will only multiply the opportunities for abuse. While the DHS introduction to the proposed regulation claims that the change is being made so that “ICE may use appropriate facilities” to jail the children, it will be the Trump administration that will, alone, decide which facilities are appropriate. There has been a massive growth of the privatized child incarceration business during the Trump presidency, and decisions on where boys and girls will be held are more likely to be based on campaign donations and political connections than on the health and safety of the children. If abuses occur, there will be no state employees to blow the whistle.
The new rule would effectively cripple the 21-year-old Flores agreement and allow ICE and the Border Patrol to hold children long beyond the 20-day limit set under Flores. Babes in arms, toddler, preteens and teens will be detained indefinitely until they complete all legal proceedings. The detentions will be far from media, congressional, and public view and will last for months or even years. Even tiny children might be held in abysmal conditions for longer periods of time than many convicted felons.