- The Trump administration has proposed a new rule that would override the Flores agreement, a court settlement that provides basic sanitary standards and protections to migrant children in US detention.
- The new rule would allow migrant children to stay in detention for an unlimited amount of time and undermine the sanitary standards for the detention facilities.
- The rule is dangerous and goes against how the US should be treating children in its care.
- Tom Jawetz is the vice president of immigration policy at the Center for American Progress.
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On Thursday, the departments of Homeland Security and Health and Human Services released a joint final rule designed to override the 1997 court-ordered Flores settlement agreement that provides critical protections — such as basic sanitary conditions and a limit on the length of detention — to migrant children in government custody.
This new rule comes at a particularly precarious time for migrant children. Seven children have died in or shortly after being released from government custody in just the past 15 months. And just two days ago, an independent monitor appointed by the Flores court identified multiple ongoing alleged violations of the agreement, including lengthy overcrowding in excessively cold Border Patrol cells and dangerous medical neglect.
Given the already inferior standard of care for the influx of migrant children who have recently entered the US, now is not the time to further jeopardize the health and safety of those children by eliminating these basic but necessary safeguards. Unfortunately, the administration’s new rule would do just that.
The Flores settlement dates back to a time not dissimilar from today, when the US government responded to the arrival of Central Americans fleeing violence, civil war, and crushing poverty by refusing to fairly adjudicate their requests for asylum and holding them in detention without access to counsel for long stretches of time.
When Jenny Flores came to the United States from El Salvador in 1985 at the age of 15, she was taken into government custody at the US-Mexico border and confined for months with unrelated adults in a facility surrounded by barbed-wire, with no education, recreation, or visitation — conditions that the Immigration and Naturalization Service at the time conceded were "deplorable" and that Supreme Court Justice John Paul Stevens said could not conceivably have been in the "best interests" of these kids. Years later, the government agreed to settle a lawsuit Jenny filed on behalf of herself and similarly situated children.
Under the terms of what became known as the Flores agreement, migrant children in government custody must be held in the least restrictive setting appropriate to their age and special needs, such facilities must be licensed by an appropriate state government agency and adhere to basic safety and welfare standards, and the government must continuously work to release such children to an appropriate sponsor without unnecessary delay.
With this new rule, the administration aims to eliminate the protections that have guided the treatment of migrant children in government custody for more than two decades. But the administration’s rule is not consistent with the essential terms of the original Flores agreement in countless ways.
Under the Flores agreement, for instance, children must be held in facilities licensed by an appropriate state government agency; that requirement is so central to the agreement that it literally appears in the list of defined terms. The administration’s new rule, by contrast, would permit the Department of Homeland Security to establish its own self-licensing program.
Keep in mind this is the same agency that recently argued in federal court that the requirement that children be held in "safe and sanitary" facilities should not be read to require that kids held for days or weeks be provided soap, toothpaste, or a shower.
And though a federal judge ruled several years ago that the Flores agreement "does not permit Defendants to routinely detain children in unlicensed, secure facilities ‘for as long as they deem necessary,’" that is precisely what the administration hopes to do with this new rule.
While Acting Homeland Security Secretary Kevin McAleenan on Wednesday said families with minor children in the past were detained, on average, for no more than 50 days, the ugly truth is that because family detention results in such great suffering, many parents who genuinely fear that returning home would expose them or their children to persecution or torture nevertheless abandon their claims for protection and accept deportation. Those who continue to pursue relief in immigration court and beyond, however, can expect to be detained for many months and even years.
The way we choose to treat these children says a great deal about who we are. As part of her lawsuit, Jenny Flores challenged the government’s traumatic practice of subjecting her and other detained children to routine strip searches. Based on well-established precedent, the court considered whether such a policy would violate the children’s constitutional right under the Fourth Amendment to be free from "unreasonable searches."
Government lawyers 30 years ago made the stunning argument that because most of the children in their custody were from Central American countries where they possessed far fewer rights than we are accustomed to, they had no reason to expect they wouldn’t be subjected to unreasonable strip searches once they entered the United States.
Rejecting this argument, the federal judge explained that while many of these children fled violence and deprivation in their home country, it is precisely because they believed and expected America would offer them protection and humane treatment that they came here.
It is a testament to the image of America in the world that that belief and expectation endures today, even though the Trump administration’s relentlessly cruel deterrence strategy hinges on sending the message that people should no longer expect our country to live up to its values and its laws.
It falls on each of us every day to present a counternarrative and to show the world what American greatness can look like. The administration’s new rule will take effect 60 days from Friday, unless it’s blocked by a federal court. So in the weeks ahead, it will fall on the federal courts to show the administration that it will take more than a unilateral executive action to undo more than 20 years of work protecting the health and safety of children in our custody and care.
Tom Jawetz is the vice president of immigration policy at the Center for American Progress. Before joining American Progress, he served as chief counsel on the immigration subcommittee of the House Judiciary Committee. In that capacity, Tom devised and executed strategies for immigration-related hearings and markups before the committee and legislation on the House floor. He has advised members of Congress and congressional staff on all areas of immigration law and policy.
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