Austin, Texas — The Biden administration is expected to try to partially end a 27-year-old agreement that provides judicial oversight over how the federal government cares for migrant children in its custody, according to a Children’s Rights attorney representing the children in the case.
The anticipated measure comes weeks after the Department of Health and Human Services published its own rule on safeguards, effective July 1, which Secretary Xavier Becerra said will establish “clear standards for the care and treatment of children unaccompanied (migrants).
Children’s advocates say what is known as the Flores agreement has been critical to ensuring safe conditions for children, especially in the context of increased border detentions over the past two years that have included nearly 300,000 unaccompanied minors.
Here’s a look at the Flores agreement and why it matters:
The 1997 settlement was the result of more than a decade of litigation between lawyers representing the rights of migrant children and the U.S. government over widespread allegations of mistreatment in the 1980s.
The original lawsuit was filed on behalf of four teenagers, including Jenny Lisette Flores, a 15-year-old from El Salvador. The lawsuit detailed how Flores and the other plaintiffs were detained by the government for long periods of time, often in facilities with unrelated adults, and did not receive adequate education or medical treatment.
The agreement established standards for the detention, treatment and release of minors. Directs that migrant children be released without necessary delay to family, a child welfare program, or an adult seeking custody if family reunification is not possible. The vast majority of children released in these cases go to close relatives while their immigration processes are ongoing.
If release is not possible due to safety concerns, the agreement states that minors must be held in the least restrictive environment that is appropriate.
The agreement also sets standards for how licensed shelters must provide food, water, adult supervision, emergency medical services, bathrooms, lavatories, temperature control and ventilation.
All of this was originally the responsibility of the U.S. Immigration and Naturalization Service. After reorganizations triggered by the attacks of September 11, 2001, the care of migrant children was divided between the Department of Homeland Security and the Office of Refugee Resettlement, which is part of Health and Human Services.
Generally speaking, children are the responsibility of Homeland Security once they are found crossing the border. Unaccompanied children are turned over to Health and Human Services within 72 hours and become the responsibility of that agency. They often live in facilities designed specifically for children until they are handed over to a family member or guardian, a process that can take days, months or sometimes years.
Under the Flores agreement, lawyers representing migrant children have the ability to visit these facilities and document conditions. Over the years, they have repeatedly reported problems.
The administration has told lawyers representing migrant children that it will seek to partially end judicial oversight, specifically for unaccompanied minors who are in Health and Human Services custody. The change will not affect Homeland Security’s prior treatment of children.
“My only guess as to why they would want to do this now is because Flores’ lawyer is a thorn in their side,” said Leecia Welch, deputy director of litigation for Children’s Rights, which represents migrant children. “We can go into (their) facilities whenever we want, we can talk to the young people there, and when they don’t comply, we can file motions to enforce it, and they don’t like that.”
The government says the new rule that comes into effect in July “implements and goes beyond” the standards set out in the Flores agreement. Among other things, it creates an independent ombudsman’s office, establishes minimum standards in temporary shelters, and formalizes advances in screening protocols for releasing children to families and sponsors and for legal services.
The 1997 agreement was not intended to last indefinitely, but rather until government regulations were created that met Flores’ standards.
The judge overseeing Flores’ settlement would have to approve the government’s request.
Advocates for migrant children are expected to oppose the administration’s move, further straining President Joe Biden’s relationship with immigration supporters during an election year when the issue is expected to be a central voting issue.
Jennifer Podkul, vice president of policy and advocacy at Kids In Need of Defense, said the group recognizes the administration’s efforts to create a rule similar to Flores’ but is concerned it would remove third-party oversight for centers that house children. .
“What I hope to see is that there is a commitment to transparency whenever a child is in government custody, to ensure that these children who have already suffered so much trauma and so much harm are not further harmed at the hands of the U.S. government,” Podkul said.
Podkul said some states like Texas have stopped licensing these centers, but the new rule says Health and Human Services can continue to use the facilities in those states anyway.
An appeals court previously granted a Trump administration request to end Flowers for Health and Human Services requirements in 2020, though the change never took effect. An attempt to suspend Homeland Security oversight at the same time was denied.
Podkul said the new rule is a rewritten version of Trump’s order and that it would be difficult for another administration to change it because of the complicated processes involved in adopting federal regulations.
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