A Short History of the Flores Settlement

From 1979 to 1992, civil war traumatized the children of El Salvador. Murder, rape, torture, and the destruction of entire communities, drove 334,000 Salvadorians to flee their country, including kids, half of whom traveled without family.

One of these young refugees was 15-year-old Jenny Flores, who in 1985 fled north through Mexico to reach the U.S.

When Jenny crossed into the U.S., she was arrested by border patrol agents.

The Immigration and Naturalization Service (INS) jailed Jenny and other immigrants in the closed Mardi Gras motel, converted into a detention center and run by a for-profit company.

Jenny was held in close quarters with adult men and women. She wasn’t allowed visitors. Her mother wanted to take her but was afraid she would be deported if she came forward. The INS refused to release Jenny to anyone but her parent.

Human rights lawyers Peter Schey and Carlos Holguin found out about Jenny and other children held elsewhere, including Ann Maria Portillo, a 16-year-old Salvadorian detained in Laredo, Texas, who was being subjected to body cavity searches. They filed a class action lawsuit on behalf of ALL kids, no matter what country they came from, who were held by immigration.

The lawyers argued that kids should be quickly released to a responsible adult and that, while held, their basic needs should be met. To pursue protection of their rights, the lawyers founded the Center for Human Rights and Constitutional Law (CHRCL), which carries on the fight to this day.

Over the next 12 years, the case was a legal tug-of-war as judges at different courts and at different levels overruled each other’s decisions.

In 1997, the children and the government ended the case by signing the Flores Settlement, a legal agreement governing the release and treatment of children in detention. They agreed to four key terms:

• Kids must be released quickly to family or others;
• Kids must have adequate food and water, basic hygiene and medical care, and be held in the lease restrictive setting appropriate to their age;
• Places where kids are kept must be state-licensed to care for children.
• CHRCL can monitor compliance with the settlement by going inside places where kids are held and talking with them and inspecting the conditions.

The government frequently violates the terms of the Flores Settlement, denying rights and humane treatment to children in detention. Every single one of the last six Presidents and their Attorney Generals have defended the agencies that neglect and abuse the children in their custody.

CHRCL, on behalf of the children, has sued the government many times to enforce their rights under the Flores Settlement. Federal Judge Dolly Gee presides over these cases and has ruled every time that the government has failed to live up to its promises.

In 2014, the government began holding children who came with a parent in family detention. Two-parent families were separated, many very young children and infants going with one parent. Families are held at facilities in Dilley or Karnes in Texas, or Berks in Pennsylvania. The government claimed these children were not entitled to Flores rights because they were with family.

In 2015, Judge Gee ruled that ALL children have Flores rights. The Court of Appeals agreed. But because Flores does not cover adults, parents who want to exercise their child’s right to quick release will be separated from them if ICE won’t let the parents go.

In 2015, at Border Patrol stations in the Rio Grande Valley, Texas, CHRCL monitors found children held in cages, in the freezing cold, under 24/7 light, without clean water and enough food. They brought these violations to Judge Gee.

In 2017, Judge Gee ordered the government to provide children safe and humane treatment. The government fought her ruling, even claiming it didn’t have to give the children soap under the terms of the settlement.

In 2018, Lucas R. v. Azar was filed, alleging that the government violated the Flores Settlement by detaining children in jail-like conditions for extended periods and drugging them. Lucas R., a 12-year-old Guatemalan, was joined in the suit by four other children, including Gabriela N., a 17-year-old Salvadorian held 1.5 years despite having a grandfather in the U.S. willing to take her. Judge Gee issued orders that helped the kids, but this case is still pending.

In 2019, monitors went to the same Border Patrol stations they had visited in 2014 and found the same conditions and worse. Kids were packed in freezing cages without proper food, water, or medical care.

Held for days and weeks in inhumane conditions, many got sick with Influenza A, chicken pox, and other contagious diseases.

A new case was filed with Judge Gee with proof the government had done none of the things she had ordered in 2015. This case is still pending.

The Flores Settlement is the only legal safeguard protecting immigrant children from government abuse. Instead of complying with their obligations under the settlement, the government continuously seeks to terminate and invalidate it.

In 2020, the government proposed new regulations to supersede the Flores Settlement. Judge Gee flatly rejected them because they deny children almost all of the protections of the Settlement. The government has appealed.

On March 26, 2020, in an emergency action, Judge Gee was asked to order the release of all children held in shelters and in family detention, and as release was going forward, to order the government to comply with CDC guidelines to protect kids against infection.

Two days later, the Judge ordered the prompt release of all children. But the battle continues, with Judge Gee in late June, 2020, finding ICE out of compliance with all CDC guidelines, saying, “The Family Residential Centers are ‘on fire’ and there is no more time for half-measures.” As of mid-September, 2020, while many kids have been released from shelters, children continue to be held in ICE family detention.

Using COVID as an excuse, instead of detaining children in the U.S. and allowing them their day in court, the government has been circumventing the Flores Settlement by stashing children illegally in hotels near the border and then deporting them to their home countries without fair hearings. Judge Gee has ordered the government to stop holding kids in hotels. But she can’t order them to hold hearings, so the deportation of children continues.