On behalf of a coalition of the nation’s leading organizations dedicated to protecting the health and welfare of children, Arent Fox LLP filed an amicus brief in the US District Court for the Central District of California in support of the Plaintiff in Jenny Lisette Flores, et al., v. William Barr, Attorney General of the United States, et al. More than 20 organizations adamantly oppose the Trump Administration’s new regulations that overturn protections guaranteed to immigrant children under the Flores Settlement Agreement.

“The Trump Administration’s Final Rule deviates radically from the Flores settlement and directly harms immigrant children in a multitude of ways,” said Arent Fox Partner David L. Dubrow, lead attorney on the amicus brief. “These changes weaken protections for migrant children, resulting in more children being detained for greater periods of time under materially worse conditions.”

Arent Fox Partner James H. Hulme added, “We must not allow the Final Rule to move forward under any circumstances — the regulations abandon the Flores settlement. Children deserve to be treated with dignity and united with their parents in our communities while waiting for their legal court hearing to be scheduled.”

The FSA, a settlement reached in 1997 in Flores v. Reno, established basic protections to keep immigrant children from harm. Among its requirements, FSA obliges the federal government to treat “all children in its custody with dignity, respect and special concern for their particular vulnerability as children.” The FSA further emphasizes that detained children should be placed “in the least restrictive setting appropriate to the child’s age and special needs . . .” and provides that immigrant children should be released, without unreasonable delay. Critically, the FSA explicitly states that the Administration shall make “prompt and continuous efforts” to promote family reunification, noting that such efforts are to continue as long as the child is in custody.

The amicus brief argues, however, that the Trump Administration’s Final Rule counters various court decisions implementing the FSA and ignores the recommendations of its own Department of Homeland Security advisory committee that “detention or the separation of families for purposes of immigration enforcement or management are never in the best interest of children.” The amicus brief argues that long-term detention of children has a proven devastating impact on their health, education, and general welfare. This is particularly true for infants and toddlers. In addition, the amicus brief advocates for family unification in the community, not in detention centers.

The following organizations, which are committed to the care, health, well-being, and welfare of children in the United States, have signed the amicus brief as amici curiae: The Center for Law and Social Policy (CLASP); American Academy of Child and Adolescent Psychiatry (AACAP); Save the Children Federation; Save the Children Action Network; The American Academy of Pediatrics; First Focus On Children; Children’s Defense Fund (CDF); ZERO TO THREE; The American Professional Society on the Abuse of Children; American Academy of Pediatrics, California; Lutheran Immigration and Refugee Service; The United States Fund for UNICEF (dba UNICEF USA); American Medical Association (AMA); American Federation of Teachers, AFL-CIO; California American Professional Society on The Abuse of Children (CAPSAC); National Education Association (NEA); American Psychoanalytic Association (APSA); National Association of Social Workers (NASW); Women’s Refugee Commission; The American Psychiatric Association (APA); and the Texas Pediatric Society, Texas Chapter of the American Academy of Pediatrics.

The Arent Fox legal team includes Partners David L. Dubrow, James H. Hulme, and John S. Purcell and Associates Jake Christensen, Andrew Dykens, Mohammed T. Farooqui, Justin A. Goldberg, and Melissa A. Trenk.

Read the entire brief here.

Statements by Organizations of the Amici Curiae

UNICEF USA

“Detention for any length of time, with or without their families, is bad for children. UNICEF USA opposes child immigration detention around the world, including in the United States, especially given that there are alternatives to detention which exist and work.”

Lee Jaffe, President of American Psychoanalytic Association

“This harmful policy, along with previous anti-immigrant initiatives by the current Administration, is psychological warfare. And we know from research that this type of trauma and toxic stress can cause long-lasting serious mental health issues such as depression, anxiety, PTSD, and even risk of suicide.”

Wendy Cervantes, Director of Immigration and Immigrant Families, Center for Law and Social Policy

“The Center for Law and Social Policy strongly stands against the Trump Administration’s cruel regulation that will traumatize children and families. We know that even a short amount of time in detention creates long-term harm to a child’s mental and physical health and disrupts the parent-child relationship that’s foundational to healthy development.”

Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service

“Ending the protections of Flores would allow babies and children to be detained in jail-like conditions. This rule is like putting the wolf in charge of the sheep. We’ve already seen at least six children die while in US custody.”

Bruce Lesley, President of First Focus on Children

“Our nation is committing a huge injustice and enormous harm to children who have done nothing to deserve this treatment. We believe that there will be drastic repercussions for the mental and physical well-being of migrant children if this rule is implemented. Basic guidelines for health screenings, nutritional standards, and appropriate living and sleeping conditions can now be violated and ignored. We agree with those who have called this an attempt to codify child abuse.”

Mark Shriver, CEO of Save the Children Action Network (SCAN)

"Children arriving at the US-Mexico border are displaced due to circumstances beyond their control – escaping extreme violence and poverty – and the Administration’s new rule takes away basic protections to keep them safe. Detaining children and families indefinitely is cruel, detrimental and un-American. SCAN is speaking out on behalf of these children, and in solidarity with other child advocacy and health organizations, to call on the courts to reject this new rule and Congress to take action and protect vulnerable children and families.”

Carolyn Miles, CEO of Save the Children

“Save the Children remains deeply concerned about the treatment and well-being of children and families seeking a safer, brighter future in America, and strongly oppose the Administration’s new rule. The inhumane treatment of children at the border is one of the gravest violations of children’s rights our humanitarian organization has ever seen, and that’s why we remain committed to serving children and families as they’re released from detention centers along our southern border. As a nation, we cannot continue to allow the federal government to use children as pawns in the battle for immigration reform – no matter your politics, every child deserves a future.”

American Academy of Child and Adolescent Psychiatry (AACAP)

“The American Academy of Child and Adolescent Psychiatry opposes the recent policy change aimed at removing the maximum length of time in which migrant children can be held in federal custody, eliminating protections for children established under the 1997 Flores Settlement Agreement. Children flourish under conditions where their health, safety, and protection by a caring adult are in the least restrictive environments. It is vital, for the well-being of all children, including immigrant children, that they receive appropriate trauma-informed care.”

Kyle Yasuda, MD, FAAP, President, American Academy of Pediatrics

“No amount of time in detention is safe for a child. When children are detained, they experience physical and emotional stress, placing them at risk for serious short- and long-term health problems, such as developmental delays, poor psychological adjustment, anxiety, depression and suicidal ideation. Weakening protections for children runs counter to the Flores Settlement Agreement, making it more likely that children would be detained for even longer in conditions unfit for any child. All attempts to do so should be rejected.”

Myra Jones-Taylor, Chief Policy Officer at ZERO TO THREE

“Babies do not belong in detention. There is no simpler way to put it. For these young children, the rollback of the Flores Settlement Agreement paves the way for spending a significant time in family detention during a critical developmental period. Even under the best circumstances, and even with their families, placing infants and toddlers in detention centers is not an acceptable option. For the federal government to inflict detention on infants, toddlers, and their families, especially for an indefinite amount of time, is cruel and inexcusable.”

Max Lesko, National Executive Director of the Children’s Defense Fund

“Any amount of time is too long for a child to be held in a jail-like detention center. This latest Trump Administration regulation completely flouts the protections guaranteed by the 22-year-old Flores agreement and ignores decades of research on child development and child well-being. Policy by policy, rule by rule, this administration is perpetuating cruelty toward children and families with its anti-immigrant policies. This latest rule is no different, and it must not move forward.”

Randi Weingarten, President of American Federation of Teachers

“The treatment of families, particularly children, is measured by actions, not words. The administration’s attempt to undo the Flores Settlement Agreement is simply cruel. Under the Flores agreement, immigrant children on US soil are legally required to receive adequate shelter, food, showers, education and safety. The Trump Administration already violates those requirements; now it wants to sanction those violations with the rollback of the agreement itself. This — combined with the newest measures to deport immigrant children with cancer and other serious illnesses — makes it clear that this administration’s conduct when it comes to children can only be characterized as cruel, craven and unconscionable. That is why we are seeking judicial intervention.”

Yasuko Fukuda, MD, FAAP Chair, American Academy of Pediatrics, California

“‘Detention’ is a sanitized word for the circumstances in which these children are being held. When the trauma, pain and suffering of any child is within our power to prevent or to heal, it is our shared responsibility to do so. We must insist upon humane and effective immigration policies that keep children and families together in the community.”

President Bruce J. Schwartz, M.D., American Psychiatric Association

“The children and families seeking asylum at our borders have already endured stress and trauma in leaving their home countries, and are faced with increased risks of mental illness, like depression, anxiety, and post-traumatic stress disorder. Prolonging the families’ detention may lead to even more harmful mental health consequences for them.”

Angelo McClain, Ph.D, CEO, National Association of Social Workers

“This reprehensible policy will cause irreparable traumatic harm to children. Changing the Flores rule is not only irresponsible but reflects a willful disregard for the safety and emotional well-being of these children. As a nation, we must always take steps to PROTECT children. NASW calls on Congress to use its constitutional authority to insist the Trump Administration rescind this rule change. The United States must take action to seek a safer future for all migrant children.”

Leah Chavla, Policy Advisor, Women’s Refugee Commission

“These regulations effectively eliminate child welfare standards for children in immigration custody and trade children’s well-being for enforcement priorities at any cost. They are in direct contrast to the intent and spirit of the Flores Settlement Agreement and are effectively a blank check to agencies who have failed time and time again to meet the most basic standards of treatment. They are a farce and must be struck down.”

Frank Vandervort, JD, Chair, Amicus Committee, APSAC; Sue Hardie, RN, Ph.D., President, CAPSAC, American Professional Society on the Abuse of Children and California American Professional Society on the Abuse of Children

“As national experts on the standards relevant to acceptable care of vulnerable children, APSAC and CAPSAC reject the government's new rule allowing indefinite detention of children in facilities self-licensed by ICE. This is child maltreatment, plain and simple, and it is completely unacceptable.”

American Psychiatric Association

The American Psychiatric Association, founded in 1844, is the oldest medical association in the country. The APA is also the largest psychiatric association in the world with more than 38,500 physician members specializing in the diagnosis, treatment, prevention and research of mental illnesses. APA’s vision is to ensure access to quality psychiatric diagnosis and treatment. For more information please visit www.psychiatry.org.