Proposed rule could allow indefinite detention of migrant children

OLYMPIA — In response to a proposed rule relaxing legal protections for migrant children, Attorney General Bob Ferguson and Gov. Jay Inslee submitted a comment letter urging the federal government to withdraw the proposal. Ferguson and Inslee released the following statement:

“Washington is no stranger to the devastating impacts of institutional detention. This Administration’s family separation policies are appallingly reminiscent of the immoral removal of Native American children from their families and the unjustified internment of thousands of innocent Japanese Americans.

“Instead of learning from the past, the Trump Administration insists on repeating it. The policies embedded in this proposal would reverse protections for migrant children, allowing the federal government to detain them for prolonged, potentially indefinite, amounts of time. It also attempts to skirt state licensing standards that ensure innocent children are housed in safe facilities, rather than restrictive settings.

“The Trump Administration’s attempt to reverse longstanding requirements that are in the best interest of children and families cannot stand. For decades, courts have prohibited the detainment of children for long periods of time.

“This proposal to indefinitely detain families disguised as immigration policy is unacceptable. The consensus among medical providers, mental health experts and social scientists is that institutional detention harms children. To leverage that harm as a means of deterring future immigration is shameful and contrary to the evidence.”

The proposed rule, “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children,” purports to codify the requirements of a settlement agreement that came out of the Flores case, a class action lawsuit from the 1980s. The Flores agreement set the “nationwide policy for the detention, release, and treatment of minors in the custody” of the U.S. Department of Homeland Security (DHS).

Among other things, the Flores agreement limits the amount of time DHS can keep a migrant child in civil custody, requires the swift release of children to a state-licensed facility or sponsor and allows DHS to release children to the care of qualified adult relatives, including siblings and grandparents.

The proposed rule attempts to reverse these requirements.

In the letter, Ferguson and Inslee point out that if adopted, the proposed rule would reduce or eliminate many of the Flores agreement’s protections. The two write, “We strongly oppose the Proposed Rule’s attempt to allow the indefinite detention of children in family detention centers, raise barriers for children seeking to be released into the care of sponsors, and grant the Department of Homeland Security essentially unfettered discretion to prolong the detention of children during an ‘emergency’ or ‘influx.’”

The comment letter urges the federal government to withdraw the proposed rule immediately.

Separately, Ferguson also led 17 other attorneys general in submitting a comment letter on the proposed rule. The public comment period ended Nov. 6.

This is not the first time that Ferguson has opposed the Trump Administration’s inhumane treatment and detention of immigrant families. In June, Ferguson filed a lawsuit challenging the Administration’s “zero tolerance” policy promoting the separation of migrant families at the border. Ferguson’s case is pending before the U.S. District Court for the Southern District of California.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

Contacts:

Dan Jackson, Acting Communications Director, (360) 753-2716; DanJ1@atg.wa.gov