Last week, the Department of Homeland Security announced that it had finalized new federal regulations governing the detention of migrant families who enter the country illegally. These regulations replace the Flores Settlement Agreement, a court agreement that has governed national policy for the detention of minor children for more than two decades, and preserve its substantive provisions protecting the welfare of migrant children in federal law.
The announcement was met with immediate criticism based on provisions that would allow U.S. Immigration and Customs Enforcement (ICE) to detain migrant children with their parents while their asylum cases are pending. Activist groups, many of whom rightly objected to the practice of separating children from their families when apprehended crossing the border illegally, argued that the regulations would weaken protections for migrant children and put them at greater risk of harm.
Some went so far as to label the plan “cruel beyond imagination.” It’s not. Rather, the regulations are a response to the difficulty of the humanitarian crisis at our southern border. They recognize that keeping children with their families in a humane and decent setting while expediting their asylum claim is the least traumatic realistic option available.
Forcibly separating children from their families is inherently traumatic and should always be a last resort. Children who are removed from their parents are shown to suffer long-term psychological and physical effects caused by the disruption to their attachment with their biological parents. The psychological harm suffered by children and parents who are separated was central to a letter the American Psychological Association (APA) sent to President Trump in June 2018 imploring him to reconsider the Administration’s policy of separating migrant children from their parents at the border. As an alternative to family separation, the APA suggested that the administration change its policy “from separating parents and children to housing them together and providing needed physical and mental health services.” That’s exactly what the proposed regulations are intended to do.
Critics of the regulations have directed their ire at the elimination of the Flores Agreement’s 20-day limit on holding children in immigration detention despite the fact that this limit, which was never actually part of the original agreement, directly led to the family separation policy. Since the average asylum case takes around 50 days to process, both the Obama and Trump administrations were faced with the choice of either releasing detained families into the interior where they could easily disappear or separating children from their parents who remained in custody.
While improving upon immigration regulations, the administration isn’t reinventing the wheel. In fact, the proposed regulations actually maintain key parts of the Flores Agreement outlining requirements for residential facilities where migrant children are placed. Writing for the majority in Reno v. Flores, the Supreme Court case that ultimately led to the Flores Agreement, Justice Antonin Scalia found that government detention of migrant children not only does not violate the Constitution when “the conditions of governmental custody are decent and humane,” but also “is rationally connected to a governmental interest in ‘preserving and promoting the welfare of the child.’”
Without question, migrant children endure a number of traumatic experiences related to conditions in their country of origin, difficulties faced on their journey to the United States, and detention upon arrival. Separating a child from his or her family adds an additional, unnecessary trauma on top of what the child has already endured. Keeping children with their families in humane conditions that comply with the substantive requirements for family residential facilities outlined in Flores and incorporated in the proposed regulations will help reduce the trauma experienced by children if implemented properly.
There are few, if any, truly good responses to the current humanitarian crisis at our southern border. Recognizing this heartbreaking reality, our goal must be to treat people seeking asylum humanely and in a manner that minimizes the trauma experienced by migrant children and actively helps them heal. Keeping migrant families together while they await resolution of their asylum claim is not perfect, but it is less traumatic than separation.