The federal agency that oversees care for thousands of unaccompanied migrant children is planning to create an internal judicial system that would eliminate the role of immigration judges in evaluating whether kids are too dangerous, or too likely to flee, to be released.
The new system would replace bond redetermination hearings, in which children held in what are known as "secure facilities" — jail-like settings akin to domestic juvenile detention — can contest the agency's decision to keep them there. Under the new plan, an employee of the U.S. Department of Health and Human Services (HHS), described by the government as a "neutral adjudicator," would decide children's fates. Appeals would be decided by HHS' Assistant Secretary for the Administration for Children and Families.
Attorneys and a former HHS official said they're skeptical of the government's plan to create an entirely new system outside the Justice Department to handle critical child welfare decisions long made by judges. The plan, for what HHS intends to call 810 Hearings, was included in a Final Regulation issued by the federal government on August 23. The regulation, if approved by a judge, would allow the government to indefinitely detain unaccompanied migrant children and families apprehended with kids.
A government attempt to implement a plan similar to the 810 Hearings — named because they would be codified in federal law as 45 CFR 410.810 — was rejected in 2016 by Judge Dolly Gee, of the U.S. District Court for the Central District of California. An appeals court later affirmed her decision.
Peter Schey, the lead attorney representing children in the settlement, accused the government of trying to force through an already rejected plan.
"We won a motion that, consistent with the plain terms of the settlement, all minors in custody, including unaccompanied minors in (HHS' Office of Refugee Resettlement) custody, have the right to a custody hearing before an immigration judge," Schey said. "The administration is trying to eliminate judicial review for detained children to the maximum extent possible."
Judge Gee oversees implementation of the Flores Agreement, a landmark 1997 court settlement that set rules for the care of unaccompanied migrant children in government custody. The government's regulation that includes the 810 Hearing seeks to terminate the Flores Agreement, but it cannot go into effect unless Gee agrees that it doesn't also violate the agreement.
Schey said the 810 Hearing plan is itself a violation.
"The regulations are inconsistent with the terms of the settlement in numerous important ways, decreasing or eliminating rights children possess under the settlement, and the court will therefore almost certainly not terminate the settlement," Schey said.
A spokesperson for HHS declined to comment citing pending Flores Agreement litigation.
Representative Rosa DeLauro, who chairs the House subcommittee that oversees HHS appropriations, derided the 810 Hearing plan and other changes to the Flores Agreement.
"The Trump Administration's proposed changes to the Flores Settlement are disturbing. The President and his officials are continuing to try to turn the Department of Health and Human Services into an immigration enforcement agency for unaccompanied children," the Connecticut Democrat said in a statement to CBS News. "HHS' role, which is to place kids into sponsors' care safely and expeditiously, could not be further out of sync with Trump's goal of indefinitely detaining children, undermining their due process, and criminalizing their existence in the process. This extension of Trump's state-sanctioned child abuse policy should be withdrawn immediately."
Under the current system, very few children actually seek bond redetermination hearings. Just 195 such hearings were requested between October 1, 2017 and August 23, 2019, according to agency statistics provided to CBS News.
Experts who spoke to CBS News said they fear an internal system would lack the checks and balances needed to prevent the agency from directing more children to secure detention, making them less likely to be reunited with their families.
"I was just emailing with a former colleague this morning about secure detention. They call it secure care, but it's lockup. It's juvenile detention," said a former high-level HHS official who asked not to be named because they were speaking without the approval of their current employer.
The former HHS official worried that the 810 Hearings would allow kids to be placed in secure detention for the very reasons they fled their home countries.
"These kids can say something to a border patrol agent about, you know, having been part of a gang…. and all of a sudden they're dropped into juvenile detention where they just sit indefinitely," the official said. "Until they turn 18 and then they're turned over to ICE."
The former HHS official, who served under former President Obama, said that administration also failed when it came to access to lawyers for children in secure facilities.
"We weren't able to bring more transparency and accountability to that system. And it's one of the many regrets I have, that those kids were owed more due process than we were able to give them in the Obama administration," the official said.
Stephen Kang, an attorney with the ACLU Immigrants' Rights Project, said it's unclear how the 810 Hearing process affect transparency and legal access issues, because of how unprecedented the system is.
"I think it is a big change in the sense that HHS has never run its own internal hearing process for detained kids before," Kang said. "It's a big new thing that we've not seen before and we have no sense of exactly what it's really going to be, or how it's going to operate in practice."