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