Members of the the Department of Homeland Security advisory council recommended Congress enact emergency legislation to make it easier for the Trump administration to detain children with their parents indefinitely, according to a draft report released to the acting secretary on Tuesday.
The council, which consists of a group of bipartisan members, provides the secretary with advice on how to approach policy decisions across a broad range of homeland security topics. A council subcommittee spent nearly seven months looking at the issue of the treatment of family and children on the southern border and conducted several site visits and conducted more than 100 interviews in the drafting of the report.
The report was formally released to Acting DHS Secretary Kevin McAleenan on an advisory council conference call Tuesday afternoon.
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“[The report] is probably one of the most consequential reports issued in my time working with the council. The report is incredible,” said William Bratton, former commissioner for the New York City police departments on the conference call. “It paints a way forward in a way that we have not seen in any previous documents that I am aware of.”
The subcommittee recommended “emergency action” by Congress in an attempt to implement what the report dubbed as the “Flores Fix”.
The suggestion includes the the introduction and adoption of legislation that would roll back, not overturn, Flores vs. Reno, known as the Flores agreement, which in 1997 laid out a set of regulations for the detention of unaccompanied immigration children. In 2015, a California court ruled that Flores include children who traveled across the border with their parents. The committee recommended that Congress immediately roll back that decision.
“The magnet bringing these surges of family units from Central America is that under Flores, if they bring a child with them, that they will be able to enter the country, claim asylum and get priority and get released into this country,” said Karen Tandy, the former head of the Drug Enforcement Administration, the chair of the subcommittee. “And they are getting released into the country without the national security requirements being handled because there are too many of these people who have chosen this path. In part they chose this path because Flores made this possible.”
If legislation that limits Flores to unaccompanied minors is delayed in Congress, then “we recommend that this be done by emergency regulation.”
“The emergency regulation would recognize that, unlike [unaccompanied minors], in some cases family units must be held beyond 20 days,” the report said, adding that the detention could take longer because of issues with establishing identities, conducting interviews, ensuring a child’s healthcare is examined and/or keeping the family intact if it is ineligible for asylum.
The council’s subcommittee formed in the midst of heightened media coverage of the family separation crisis and just a few months after the Trump administration implemented its “zero tolerance policy”—a policy that aimed to criminally prosecute all adults suspected of crossing the southwest border.
Legal advocates and civil rights groups were quick to condemn the proposal, calling the potential modifications to Flores “really concerning.”
“The idea that we should be eliminating critical protections in our laws that are there to protect children and ensure that asylum seekers are protected is deeply problematic,” said Katharina Obser, senior policy advisor for migrant rights at the Women’s Refugee Commission. “It’s been incredibly well documented that DHS’s current family detention practices are traumatizing and harmful, and to allow families to be detained for an even longer period of time is really concerning.”
Laurence Benenson, the assistant director for immigration policy and advocacy at the National Immigration Forum, protested that the “indefinite detention of children with their families, potentially for years, is no ‘fix.’”
“The administration instead should employ alternatives to detention such as community supervision, case management programs or electronic monitoring,” Benenson said.
The administration’s interest in modifying Flores, Obser said, comes two years after it ended a case management program that ensured asylum-seeker compliance with court dates while also allowing family units to be together outside of a detention setting.
The program, which had compliance rates of more than 99 percent, “costs a fraction of any other approach that this administration has taken—not even to mention the emotional cost,” Obser said. “We’re taking about traumatizing, inhumane policies when there is this alternative that meets the government’s purposes and costs a fraction.”
Members of the committee who spoke to The Daily Beast over the last seven months told reporters that on their visits to the southern border they were immediately struck by the overwhelming number of children held in detention facilities, Beyond the sheer number of people held in detention, the members said they were even more disturbed by how long children were being held for processing and the conditions in which they lived.
The subcommittee found that more than 53,000 family units were apprehended on the southern border last month alone and that the number of family unit apprehensions “is likely to exceed 500,000 in Fiscal Year (FY) 2019.” Tandy said the subcommittee recommended the construction of an additional four regional processing centers along the border to help mitigate the flow of people trying to cross the border.
Customs and Border Control will “need to re-assign an increasing number of CBP officers stationed at ports of entry to assist the … in handling the surge in family unit migration,” the report said, adding that border patrol agents should take photographs and biometrics of children, of any age, to “stem the recycling of children at the border and to rapidly determine the legitimacy of parentage claims.”
The report also recommended Congress draft legislation that would allow asylum seekers access to a hearing or a decision on their claim within 20 or 30 days. A so-called “rocket docket”, with the addition of several hundred immigration judges, would accelerate the process for asylum claims of family units. The docket would move forward in tandem with the proposed Flores legislative change.
Members said the interim report will be shared with the White House and a longer, more comprehensive report will be released in May.
