Austin, Texas — The Biden administration wants to partially end a 27-year-old agreement that provides judicial oversight over how the federal government cares for migrant children in its care.
The request to a U.S. district judge, filed Friday, 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 “set clear standards for care and treatment of unaccompanied (migrant) children.”
In a motion filed in California federal court, the government argued that the court’s oversight has achieved its purpose and that new regulations are a better solution to ensure children’s safety.
Child advocates say what is known as the Flores Agreement has played a major role in ensuring safe conditions for children, especially amid rising border detentions over the past two years involving nearly 300,000 unaccompanied minors.
Here’s a look at the Flores Agreement and why it matters:
The 1997 agreement was the culmination of more than a decade of litigation between lawyers representing the rights of migrant children and the U.S. government over widespread allegations of abuse 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 held by the government for extended periods of time, often in facilities with unrelated adults, and denied education or proper medical treatment.
The agreement sets standards for the detention, treatment and release of minors. It requires that migrant children be released without due delay to relatives, a child welfare program or an adult seeking custody if family reunification is not possible. The vast majority of children released in such cases go to close relatives while their immigration cases are pending.
If release is not possible due to safety concerns, the agreement says minors should be held in the least restrictive environment appropriate.
The agreement also sets standards for how licensed shelters must provide food, water, adult supervision, emergency medical services, toilets, sinks, temperature control and ventilation.
All of this was originally the responsibility of the U.S. Immigration and Naturalization Service. After reorganizations following the attacks of September 11, 2001, care for 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, children are the responsibility of Homeland Security after crossing the border. Unaccompanied children will be turned over to Health and Human Services within 72 hours and will be the responsibility of that agency. They often live in facilities designed specifically for children until they are released to a family member or guardian, a process that can take days, months, or sometimes years.
Under the Flores Agreement, attorneys representing migrant children have the opportunity to visit these facilities and document conditions. Over the years they have repeatedly reported problems.
The government has moved to partially end judicial supervision, especially for unaccompanied minors in the custody of health and human services. The change will not affect Homeland Security’s advance treatment of children.
“My only guess as to why they would want to do this now is because Flores’ counsel is a thorn in their side,” said Leecia Welch, deputy director of dispute resolution at Children’s Rights, which represents child migrants. “We can go into (their) facilities whenever we want, we can talk to the young people there, and if they don’t follow the rules, we can make requests for enforcement, and they don’t like that.”
The government says the new rule, which 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, sets minimum standards for temporary shelters and formalizes advances in screening protocols for releasing children to families and sponsors and for legal services.
The 1997 settlement was not intended to be indefinite, but rather to implement government regulations that meet Flores standards.
The judge overseeing the Flores agreement would have to approve the government’s request.
Child migrant advocates are expected to oppose the administration’s decision, 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 that this could undermine third-party oversight on centers where children are housed.
“What I hope to see is that there is transparency every time a child is held in government custody, to ensure that these children, who have already suffered so much trauma and so much harm, are not harmed further. of the US government,” Podkul said.
Podkul said some states, such as Texas, have stopped licensing these centers, but the new rule says Health and Human Services can continue to use facilities in those states anyway.
An appeals court previously granted a Trump administration request to end Flores’ health and human services claims in 2020, although the change never went into effect. An attempt to simultaneously eliminate oversight of Homeland Security was rejected.
