KIND Comments on the Proposed Flores Regulations

Published   on November 8, 2018
On November 6, 2018, KIND submitted the public comments below urging DHS and HHS to withdraw proposed regulations seeking to terminate the Flores Settlement Agreement, expand the government’s ability to detain children for longer periods, and weaken standards and protections related to the treatment of children in immigration custody.

Thank you to the Goodwin Procter LLP team of Brian Burgess, Elaine Herrmann Blais, Emily Rapalino, Sundar Subramanyam, Jacqueline Klosek, Priya Patel, Tobias Schad, Elizabeth Jordan, Zain Ahmad, Eric DiIulio, and Viona Miller for their incredible pro bono assistance with producing these comments.

Download the full comments here.

RE:     DHS Docket No. ICEB-2018-0002; Comments on proposed rulemaking re: Apprehension, Processing, Care and Custody of Alien Minors and Unaccompanied Alien Children


Dear Ms. Seguin:


Kids in Need of Defense (KIND) appreciates the opportunity to comment on regulations proposed by the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) relating to the apprehension, processing, care, custody, and release of immigrant children (the “Proposed Regulations”), as announced in a notice of proposed rulemaking published September 7, 2018 in Volume 83 of the Federal Register (cited herein as “FR”), No. 174, at 45486-534 (the “NPRM”).


KIND is a national nonprofit organization dedicated to providing free legal representation and protection to unaccompanied immigrant and refugee children in removal proceedings. Since January 2009, KIND has received referrals for over 16,800 children from 70 countries, and has collaborated with more than 570 pro bono partners to serve such children. KIND has field offices in ten cities: Atlanta, Baltimore, Boston, Houston, Los Angeles, Newark, New York, San Francisco, Seattle, and Washington, DC.


Nearly all of the children and minors who receive legal services through KIND are, at some point during the pendency of their immigration matters, detained in the custody of DHS or HHS’ Office of Refugee Resettlement (ORR). Many of these children have fled their countries of origin because of violence, abandonment, and other unsafe situations, and they accordingly face enormous challenges upon arriving to the U.S., including healing from a history of trauma, overcoming language and educational barriers, and navigating the immigration system. The manner in which DHS and HHS treat, process, detain, and release minors can have a profound impact on whether a child is able to access needed social services, secure legal representation, and obtain humanitarian protection. As a legal services provider, KIND has a strong interest in ensuring that the Flores Settlement Agreement (FSA), which sets forth national standards for the government’s treatment, detention and release of unaccompanied children and other minors, is fully and faithfully implemented.


We are concerned that the Proposed Regulations not only fail to implement the FSA, but actually undermine its purposes and that of other critical federal laws and policies pertaining to children in the immigration system. Accordingly, KIND urges DHS and HHS to withdraw the Proposed Regulations.

  1. Executive Summary

The stated purpose of the Proposed Regulations is to “implement the relevant and substantive terms of the Flores Settlement Agreement” and thereby trigger the provision that provides for termination of the FSA. (FR 45487-488) However, the Proposed Regulations contravene the substance and purpose of the FSA, and therefore provide no basis to terminate the FSA. Moreover, the Proposed Regulations contain numerous provisions that contravene the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), the Homeland Security Act of 2002 (HSA) and/or the principle of the best interests of the child, and must therefore be withdrawn or rewritten.


Among the high-priority concerns that KIND has identified are the following:

  1. UAC redeterminations. The Proposed Regulations would institute repeated reexamination of whether a child meets the definition of “unaccompanied alien child” (UAC), injecting instability and duplication of labor into case processing, and stripping vulnerable children of basic protections mandated by Congress.
  2. Age determinations. Requiring consideration of multiple forms of evidence would better promote accurate age determinations.
  3. Initial custody and transport. The Proposed Regulations weaken FSA requirements governing initial custody and transport of minors on grounds of “operational feasibility.”
  4. Loopholes for custody standards. Sweeping definitions of “influx” and “emergency” would risk perpetual relaxation of the standards under which children in custody are held and transported.
  5. Secure custody. Expanding the use of secure custody would be contrary to the FSA’s requirement of the least restrictive setting when detention of a minor is necessary.
  6. Impeding release from ORR custody. Expansive information-sharing for immigration enforcement purposes will be at the expense of child welfare and the FSA policy of prompt release of minors from custody.
  7. Impeding release from DHS custody. The Proposed Regulations place new restrictions on the release of children from DHS custody, contrary to the FSA’s “general policy favoring release.”
  8. Detaining children in unlicensed facilities. The Proposed Regulations would replace the FSA requirement to hold children in state-licensed facilities with a scheme for deeming facilities in which minors and their families are held together to be licensed if a DHS contractor finds them to be compliant with detention standards of Immigration and Customs Enforcement (ICE).
  9. Post-release services. Mechanisms responsive to children’s legal and social services needs should be developed outside of this rulemaking.
  10. Retaking custody of released minors. Re-taking custody of previously released minors could have far-reaching negative impacts and raise due process concerns.
  11. Bond redetermination. Instead of bond redetermination hearings before immigration judges, the Proposed Regulations provide for determinations by “independent hearing officers” within HHS.
  12. Oversight and compliance monitoring. The Proposed Regulations offer no substitute for the vital third-party oversight currently provided through judicial enforcement of the FSA.
  13. Deterrence as an objective. The proposed increased use of detention of children and families rests on incorrect assumptions about deterring future migration.
  14. Unquantified costs. The NPRM contains no estimate of the extent of the concededly higher costs imposed by the Proposed Regulations.

KIND respectfully requests that your Departments withdraw the NPRM in view of the considerations detailed below.

Download the full comments here.

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