But first, a confession: in truth, I have "borrowed" liberally from the reasoning (and structure), found in the comprehensive and excellent ACLU brief I linked over the weekend, whilst on the road, canvassing over 220 doors.
None the less, here is the salient bit of mine (Tracking No. 1k2-96ek-d8wy). This is, once again, another of 45's odious attempts to act as a despot, and circumvent well-settled US law:
. . . .It seems abundantly clear that this attempted rule-making exceeds the authority of ICEB, DHS and the Trump administration -- after the 1997 Flores consent agreement was entered, in the Central District of California's federal district courthouse. [As you well know, it is of no relevance, or legal moment, that the Flores litigation was commenced under the former Reagan administration, and settled under the former Clinton administration. It binds this current administration, for howsoever long Trump may remain in power.]
In the Flores case, the entire federal government (as an express condition to resolving litigation that had been active since at least 1985) agreed, as a matter of contractual law, that it would abide by specified minimum procedures with regard to speedy release of non-citizen minors in its care. That prompt release clause is a central feature of the Flores settlement / consent.
The instant rule-making proposal, at 8 C.F.R. § 212.5(b)(3)(i) and (ii), materially circumscribes class members’ eligible custodians, providing that children may be released only “to a parent or legal guardian not in detention . . . [or] with an accompanying parent or legal guardian who is in detention.” Such detention is wholly inconsistent with the Flores settlement.
Indeed, ICEB seeks to accomplish through rulemaking what it could not in court: to legitimate the mandatory, long-term detention of non-citizen children in wholly unlicensed detention centers regardless of their and their families’ wishes.
This is so because the proposed rules declare all other custodians ineligible to receive and care for such class members effectively consigns accompanied class members to mandatory detention for howsoever long ICEB / DHS may require to remove the entire family. See 83 Fed. Reg. at 45,526 (“DHS’s policy is to maintain family unity, including by detaining families together where appropriate and consistent with law and available resources. . . .”). By any measure, this is “family unity” with a vengance coming from an agency that only recently was enjoined against separating thousands of children, some still nursing, from their parents.
These proposed rules clearly implement DHS / ICEB's oft-stated and unfounded view that detaining families for the duration of removal proceedings deters other would-be unauthorized entrants. It does not, however, implement or comply with the Flores settlement.
This specific issue is now being litigated in Flores (USDC, CD CA Case No. 85-4544), as motion practice, and may be heard as early as November 7, 2018.
The Flores settlement ¶ 19 generally requires DHS to place class members in non-secure facilities licensed to care for dependent, as opposed to delinquent, minors. Under that court order, DHS and ICEB may deny children licensed placement only under defined circumstances. Flores settlement ¶ 21. A child being apprehended with a parent is not among those circumstances. It is well settled that the Flores settlement applies to all minors in immigration-related custody, accompanied or not.
In proposed 8 C.F.R. § 236.3(a)(9), DHS / ICEB transparently tortures the Flores settlement’s definition of “licensed placement” to fit the Trump administration’s unlawful goal of mandatory family detention. "...If a licensing scheme for the detention of minors accompanied by a parent or legal guardian is not available in the state, county, or municipality in which an ICE detention facility is located, DHS shall employ an entity outside of DHS that has relevant audit experience to ensure compliance with the family residential standards established by ICE...." 83 Fed. Reg. at 45,525.
The DHS / ICEB government entities may not abrogate, by rule, a contract which it made, as an enforceable bargain -- to all future minors: they must be released promptly, to any guardian -- and may only be held in state-LICENSED facilities. Flores is plain on this score.
So, it is plain that, as a practical matter, the ill-starred, and unlawful proposed rules will simply strip accompanied Flores class members of their right to licensed placement.
Had the litigants wished to let the government's DHS or ICEB agents or an unidentified entity of their choosing — set minimum standards for children’s detention, the Flores settlement would have so provided, in January 1997. It does not because DHS and ICEB agents (and previously, INS agents) have historically placed children in substandard facilities. The Flores litigants therefore insisted, and INS, DHS and ICEB agreed, to place children in facilities holding a state-issued, dependent care license, AS A MINIMUM PROTECTION.
Finally it should be noted that Flores settlement ¶ 6.17 requires that a “licensed program” be “NON-secure as required under state law.” Yet, the proposed rules contrive to define the term, “non-secure,” to legitimate DHS / ICEB agents confining non citizen children indefinitely in unquestionably LOCKED, PRISON LIKE facilities.
That the government cannot do by mere rule-making. It cannot change the plain language of its prior agreements. Not without an Act of Congress.
DHS and ICEB well know this -- and very shortly it is likely that the able USDC Judge Dolly Gee, sitting in Los Angeles will so rule.
Accordingly, this proposed rule-making ought to be deferred, as a matter of comity and full faith and credit. Alternatively, very shortly it will be enjoined. Entirely.
Now you know. Grinning ear to ear. It hasn't been since the early and late 1990s that I've offered public commentary (back then, on SEC proposed rules), in the Federal Register. I guess -- now. . . I'm back in the game. Onward, to a blue tsunami celebration, tonight!
नमस्ते
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