Schrag: Proposed Flores Regulation is Legally Invalid

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

Georgetown University"