Federal Court blocks Trump effort to detain children indefinitely

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Dear advocates and those interested in President Trump's detention of immigrant children,

On September 7, 2018, the Trump administration issued a notice of proposed regulations that purportedly “parallel the relevant and substantive terms” of the Flores Settlement that we negotiated in 1997, and were intended to supersede and terminate the Agreement. See 83 Fed. Reg. 45,486–45,534 (Sept. 7, 2018). The notice and comment period on the proposed regulations closed on November 6, 2018. We are informed that a record over 100,000 members of the public commented on the proposed regulations, almost all opposed to terminating the Flores Settlement and the protections it extends to all detained minors.

On November 2, 2018, we filed a Motion to Enforce the Flores Agreement. We requested that the Court permanently enjoin the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) from implementing the Proposed Regulations or their “material equivalent”. The terms of the Settlement require that to terminate the agreement, the Government must issue "final regulations
implementing this Agreement." We argued that the proposed regulations did not "implement" the Settlement. Instead, if implemented, the regulations would abrogate key terms of the Settlement, and therefore would not terminate the settlement. We argued that any final regulations adopting the proposed regulations should be blocked as implementation of the regulations would place the Government in breach of the Settlement (because the regs are inconsistent with the Settlement).

The Court deferred ruling on our Motion to Enforce until the Government issued final regulations. On August 23, 2019, the DHS and HHS published the final regulations to become effective on October 22, 2019. See 84 Fed. Reg. 44,392–44,535. The Government ignored or rejected the opposition of about 100,000 public comments.

On September 27, 2019, following a hearing held the same day, the federal court overseeing compliance with the Settlement issued a detailed memorandum ( available at this link ), and a permanent injunction ( available at this link ), permanently blocking implementation of the Government's final regulations dealing with the detention of children. Having failed to achieve legislation to abrogate the Settlement, the Court held that "Defendants cannot simply impose their will [i.e. their desire to terminate the Flores Settlement] by promulgating regulations that abrogate the [Settlement's] most basic tenets."

In its Permanent Injunction, the Court rules that "[t]he Flores Settlement Agreement remains in effect and has not been terminated ... Defendants are permanently enjoined from applying, implementing, or enforcing the New Regulations." Advocates working for detained minors should continue to monitor and insist upon compliance with the terms of the Settlement, available at this link .

This is a major victory for immigrant children targeted by the Trump administration for indefinite detention in unlicensed facilities rather than prompt release and, for children not released, detention in licensed facilities where children are guaranteed minimum standards of safe and sanitary conditions. The motion for a permanent injunction was argued by Center's General Counsel Carlos Holguin. Carlos and I serve as class counsel for all detained minors nationwide. The National Center for Youth Law and the Immigration Law Clinic, University of California Davis School of Law provided significant help in developing plaintiffs' arguments and briefs.

To volunteer to join Flores court-approved monitoring visits and class member interviews at detention sites, or to make a donation to support this work, please visit and register at www.reunify.org . To follow work being done for released minors housed at the Casa Libre shelter, visit www.casalibrela.org . Thanks.

Best,

Peter Schey
President
Center for Human Rights and Constitutional Law

If you cannot volunteer, please go to the website and make a donation to support the work of defending detained children from relentless attacks by this Administration.

Please feel free to forward this email to others who may want to support the ongoing efforts aimed at protecting the rights of detained children and securing their release from federal custody as promptly as possible.

Thank you.

Peter Schey
President
Center for Human Rights and Constitutional Law

Reprinted with permission.


About The Author

Peter Schey is the president of Center for Human Rights and Constitutional Law.


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