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Today, Nov. 6, 2018, is the last day to file comments on the Flores NPRM filed by DHS and HHS. So far, over 57,000 comments have been filed.
Prof. Philip G. Schrag, co-director of the Center for Applied Legal Studies, the asylum law clinic at Georgetown University Law Center, and the Law Center’s Delaney Family Professor of Public Interest Law, filed this comment:
"I am the co-director of the Center for Applied Legal Studies, the asylum law clinic at Georgetown University Law Center, and the Law Center’s Delaney Family Professor of Public Interest Law. I am also the author or co-author of four books and several law review articles on asylum law and policy. My books include:
LIVES IN THE BALANCE: ASYLUM ADJUDICATION BY THE DEPARTMENT OF HOMELAND SECURITY
(with Jaya Ramji-Nogales, and Andrew I. Schoenholtz) (New York University Press 2014)
REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM (with
Jaya Ramji-Nogales and Andrew I. Schoenholtz) (New York University Press 2009)
ASYLUM DENIED: A REFUGEE’S STRUGGLE FOR SAFETY IN AMERICA (with David Ngaruri
Kenney) (University of California Press 2008)
A WELL-FOUNDED FEAR: THE CONGRESSIONAL BATTLE TO SAVE POLITICAL ASYLUM IN
AMERICA (Routledge, 2000).
I assume that many other commenters will address issues of policy and cost in connection with the proposed regulation. I am writing to address a different issue: the regulation is invalid.
The Flores settlement agreement, as amended in 2001, provides that it will be terminated 45 days following defendants’ publication of final regulations implementing the Agreement but “notwithstanding the foregoing, the INS shall continue to house the general population of minors in INS custody in facilities that are state-licensed for the care of dependent minors.”
In other words, only a regulation that implements the agreement will terminate it, and even such a regulation could not dispense with the requirement of housing alien children (whether accompanied or in family groups) in “facilities that are state-licensed for the care of dependent minors.”
The Notice of Proposed Rulemaking correctly states that some of the provisions of the proposed regulation “parallel” the provisions of the Flores agreement. But not all of them do so, and
therefore the proposed regulation does not “implement” the agreement. Instead, some of the provisions or omissions are entirely at odds with the settlement agreement. Undoubtedly, other commenters will point out many differences between the settlement agreement and the regulation. I will mention just a few:
■ The proposed regulation purports to abrogate the requirement that the children be housed in facilities that are state-licensed for the care of dependent children.
Ironically, this is the one feature of the Flores settlement that explicitly can’t be eliminated even by a regulation implementing the agreement. It would take legislation or judicial action to change this feature of the settlement.
■ It would do away with the settlement’s requirements that the government make prompt and continuous efforts toward family reunification and release of minors.
■ It would eliminate the requirement that INS’s successor agencies release minors if detention is not required to secure their appearance in court or for reasons of safety
■ It would eliminate the requirement that all migrant children be housed in the least restrictive placement available
■ It would abrogate, for children in DHS custody, the settlement’s provision stating that a child could be released to parents, legal guardians, adult relatives, licensed programs, or other adults seeking custody.
Therefore, it seems likely that the proposed regulation will be enjoined by the federal courts. Promulgating it will serve only to create confusion and fear among migrant children and their families, as well as adding to taxpayers’ burdens by provoking costly litigation.
Philip G. Schrag
Delaney Family Professor of Public Interest Law