November 6, 2018
Secretary Kirstjen Nielsen
Department of Homeland Security
Nebraska Avenue Complex
3801 Nebraska Ave NW
Washington, DC 20016
Secretary Alex Azar
Department of Health and Human Services
Hubert H. Humphrey Building
200 Independence Avenue, S.W.
Washington, D.C. 20201
Re: Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children (Docket No. ICEB–2018–0002)
Dear Secretaries Nielsen and Azar,
The Academy of Nutrition and Dietetics (the "Academy") appreciates the opportunity to submit comments to the U.S. Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) ("the Departments") related to the September 7, 2018 proposed rule "Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children (Docket No. ICEB–2018–0002)." Representing more than 104,000 registered dietitian nutritionists (RDNs),1 nutrition and dietetic technicians, registered (NDTRs), and advanced-degree nutritionists, the Academy is the largest association of nutrition and dietetic professionals in the United States. Our members provide various medical and professional services in the clinical and community settings, including the oversight of government-sponsored child nutrition programs and the provision of medical nutrition therapy for children with special needs.
The Academy does not support regulatory language that would enable the government to indefinitely detain families and children, and we reiterate our sincere concerns about the long term impact of this immigration policy on the children's mental and physical well-being. We note that many children lose their appetites or stop eating in detention, resulting in significant weight loss and a failure to receive the proper nutrition needed to grow and stay healthy.2 Thus, we encourage revisions to the proposed rule to provide assurance that minors at the border will not lose their existing specific civil rights protections effectively precluding their detention longer than twenty days. Although the proposed rule's stated purpose is to end "widespread child welfare violations within the immigration detention system," we are concerned that the proposed rule, if finalized, could instead actually weaken protections for immigrant children and reverse the existing protections of the Flores Settlement Agreement (FSA) upon the concomitant dissolution of associated court orders that have substantially improved inhumane conditions for children detained at the border.
A. Concerns Regarding Federal Licensing of Facilities
Courts determined that the Department of Homeland Security violated the FSA by housing minors in secure and non-licensed facilities; and that Customs and Border Patrol (CBP) violated the FSA by holding minors in facilities that were not safe and sanitary. In an attempt to remedy the former violation, the proposed rule states that "[t]he goal is to provide materially identical assurances about the conditions of such facilities, and thus to implement the underlying purpose of the FSA's licensing requirement, and in turn to allow families to remain together during their immigration proceedings." However, one significant concern is the manner in which the proposed rule removes a crucial element of accountability by enabling the Departments to self-license and inspect facilities, which is likely to result in standards lower than those currently required with State-licenses. States have the experience and infrastructure with licensing various residential facilities that the federal government lacks, and could more easily establish or modify rules for additional facility types. Moreover, the questionable federal licensing proposal appears to conflict with Executive Order 13771 in that it actually both (1) creates additional regulatory burden for the federal government by requiring it to develop, implement, and oversee an entirely new licensing scheme and (2) reduces states' flexibility in determining how facilities located in their respective states should meet legal mandates.
B. Unsafe, Unsanitary, and Inhumane Conditions of Facilities
The Academy questions whether the proposed rule as written is likely to improve the conditions of facilities courts had determined violated the FSA. In addition to safety and sanitation, particular areas of concern for the Academy continue to be ensuring that food and nutrition requirements are met, and access to medical care provided, for families who are placed in temporary detention facilities or care provider facilities.
Sworn statements about conditions suggest food and nutrition requirements are not being met, and included references to the "lack of, or poor quality of, drinking water... [and] sandwiches that were frozen solid, appeared to be spoiled or that [children] otherwise found inedible;"3 "inadequate and inedible food, including expired baby formula and juice,"4 and "a breast-feeding mother saying she couldn't produce enough milk because she wasn't getting enough food."5
We cannot agree with the proposed rule that "the alternative federal licensing scheme would provide effectively the same substantive protections that the state licensing requirement exists to provide, and accordingly fulfill the underlying purpose of the state-licensing requirement under the FSA" unless and until the federal licensing scheme and any associated standards that ensure appropriate conditions in facilities are defined, promulgated, implemented, and determined to be substantially similar by an outside party. At present, the FSA provides necessary protections for immigrant children, yet finalizing this proposed rule would dismantle the court-ordered protections and would replace them with nothing but the Departments' mere promise that their future licensing scheme will provide similar, but still undefined protections. As written, this proposed rule does not provide the requisite specificity to ensure immigrant children would continue to receive the same substantive protections as under the Flores Settlement.
C. Specific Substantive Protections Suggested for Inclusion
Children and adolescents placed in these facilities, whether administered by governmental or non-governmental organizations, should be reunited with their families as soon as possible. To promote optimal physical, cognitive, and social growth and development, they should have access to an adequate supply of healthful and safe foods and clean drinking water. We appreciate reference to these requirements in the proposed regulations, but the lack of specificity or reference to relevant standards is concerning. The Academy strongly encourages the Department of Homeland Security (DHS) to ensure that meals meet nutrition standards established by the U.S. Departments of Agriculture and Health and Human Services.
For infants, exclusive breast-feeding provides optimal nutrition and health protection for the first 6 months of life, and breast-feeding with complementary foods from 6 months until at least 12 months of age is the ideal feeding pattern. Accordingly, the Academy requests that breast-feeding infants continue to have access to milk from their mothers in all situations.
Upon children's entry into temporary care or detention facilities, the Academy encourages DHS to identify those with special health care needs and to provide appropriate treatment according to evidence-based guidelines for care. Nutrition services provided by registered dietitian nutritionists and nutrition and dietetic technicians, registered are essential components of comprehensive care for children and youth with special health needs.
Finally, the Academy asks that DHS's management of facilities and the care of children and adolescents be transparent to the public. Specifically, the Academy asks DHS to share with the public how food and nutrition requirements are met and how access to care is provided for families who are placed in the facilities.
The Academy appreciates the opportunity to comment on the proposed rule "Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children (Docket No. ICEB–2018–0002)." Please contact either Jeanne Blankenship at 312-899-1730 or by email at firstname.lastname@example.org or Pepin Tuma at 202-775-8277 ext. 6001 or by email at email@example.com with any questions or requests for additional information.
Jeanne Blankenship, MS, RDN
Policy Initiatives and Advocacy
Academy of Nutrition and Dietetics
Pepin Andrew Tuma, Esq.
Government & Regulatory Affairs
Academy of Nutrition and Dietetics
1 The Academy approved the optional use of the credential "registered dietitian nutritionist (RDN)" by "registered dietitians (RDs)" to more accurately convey who they are and what they do as the nation's food and nutrition experts. The RD and RDN credentials have identical meanings and legal trademark definitions.
2 Rachel Kronick, Cécile Rousseau, and Janet Cleveland, "Asylum-seeking children's experiences of detention in Canada: A qualitative study," American Journal of Orthopsychiatry 85 (3) (2015): 287–294; Kathryn S. Miller, "The psychological impact of immigration detention on child and adolescent asylum seekers," Journal of Child and Adolescent Behavior" (2017); Olga Byrne and Eleanor Acer, "Family Detention: Still Happening, Still Damaging" (New York: Human Rights First, 2015).
3 Scott Neuman. 2018, July 18. Migrants Allege They Were Subjected To Dirty Detention Facilities, Bad Food And Water. NPR. Accessed November 4, 2018.
4 Patricia Hurtado. 2018, July 24. Migrant children detail rough detention conditions as judge weighs monitoring. Virginia-Pilot. Accessed November 4, 2018.
5 Danyelle Khmara. 2018, July 19. 'Ice Box' Detention Facilities May Violate Flores Settlement. Tucson Weekly. Accessed November 4, 2018.