Biden administration rejects Trump-era plan to end legal deal protecting migrant children

(CBS NEWS)

Under pressure from advocates, Biden administration backtracks on plans to implement Trump-era regulations that would end a long-standing judicial settlement designed to protect migrant children detained in the United States, two people familiar with the matter told CBS News.

The Department of Health and Human Services (HHS) 2019 to reign was one of a pair of regulations designed to replace the Flores Settlement Agreement, which has governed the care of children detained in the United States since 1997 through strict standards for government shelters and detention sites.

The administration omitted the HHS rule from its fall unified regulatory agenda on Friday, although it included it on the spring agenda earlier this year. The decision to reject the Trump-era rule came after months of internal debate, a Biden administration official familiar with the deliberations told CBS News.

For decades, the Flores Agreement has enabled nonprofit lawyers to inspect facilities housing migrant children, ensure officials are providing adequate care and services to minors detained in the United States, and seek redress in federal court if they determine that the government is in violation of the terms of the agreement.

The Biden administration is now expected to work on its own rules to codify Flores’ settlement, which was always intended to be replaced by regulations. Advocates called on the administration to put in place a monitoring mechanism to ensure migrant children receive adequate care before moving to end the settlement.

“Even when, as is the case now, leaders commit to ensuring respect for children’s rights, independent oversight is essential,” said Neha Desai, one of the lawyers representing young migrants in the Flores case. “Across multiple jurisdictions, our interviews with children repeatedly revealed deeply disturbing violations of the Accord; violations that compromise the basic health and safety of children.

In a document filed Friday evening, the Justice Department confirmed that the Biden administration would no longer “seek to terminate” the Flores deal through the 2019 rules. Instead, the department’s lawyers said , the administration will consider a “future regulation”.

The Trump administration sharply criticized the Flores deal, calling it a “loophole” that encouraged migrant families and children to cross the US border illegally. Officials have been particularly critical of a decision in the Flores case which generally prohibits the government from detaining migrant families for more than 20 days.

In the summer of 2019, the Trump administration released two sets of regulations to replace the Flores regulation, an HHS to govern the care of unaccompanied minors and a Department of Homeland Security (DHS) rule that would allow the government to detain migrant families with children indefinitely.

The 2019 regulations drew heavy criticism from immigrant advocates and Democratic lawmakers when they were released by the Trump administration. Opponents of the regulation have denounced them as an effort to remove legal guarantees for migrant children, and a federal court quickly blocked the rules.

In December 2020, the Ninth Circuit Court of Appeal partially maintained a decision against the regulations, blocking DHS rules that would have allowed families to be detained indefinitely while their asylum claims were processed.

But the appeals court allowed the government to implement rules published by the HHS, which operates shelters and other accommodation sites for migrant children who enter U.S. detention without their parents. According to agency data, as of Friday morning, the HHS was housing 13,072 unaccompanied children.

In June, the Biden administration quietly announced its intention to implement HHS regulations for unaccompanied children after making some changes required by the Ninth Circuit ruling, as well as a “technical fix.”

As part of a deal with Democratic-led states that challenged the 2019 rules, the Biden administration could have ended the Flores settlement – as it relates to HHS shelters – 180 days after issuing a rule final.

Termination of the Flores deal would no longer guarantee nonprofit lawyers access to HHS shelters for unaccompanied children or the ability to ask a federal court to enforce the settlement if the government violates its provisions.

The prospect has alarmed advocates for migrant children, who have staged a behind-the-scenes push to urge the Biden administration to do away with Trump-era rules and work on new regulations from scratch.

In August, dozens of advocacy groups pleaded with officials at the Office of Refugee Resettlement, the HHS agency that houses migrant children, to create “robust monitoring mechanisms” to monitor shelter conditions before shutting down to the agreement of Flores, according to the letter obtained by CBS. News.

As part of the litigation mounted by the Democratic-led states, the Biden administration agreed to suspend the most controversial provision of the HHS regulations: a rule that would give authorities more leeway to remove the unaccompanied minor designation, and the legal protections that go with it, of children determined to have parents “available” to care for them in the United States.

Under US law, unaccompanied children are protected from expedited deportations and allowed to seek asylum through child-friendly interviews rather than before an adversarial immigration judge.


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