On September 7, 2018, The Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) proposed sweeping regulations that would substantially change how children and families are detained. The regulations would replace and sunset the Flores Settlement, an agreement that protects the interests of children in immigration detention.
The Flores Settlement protects children in immigration detention.
In 1985, fifteen-year old Jenny Flores was held by the legacy Immigration and Naturalization Service (INS) in a dilapidated hotel in East Los Angeles along with adults of both sexes, an inappropriate arrangement for anyone, least of all children. Jenny’s aunt wanted to sponsor her release, but INS allowed only parents to serve as sponsors. Carlos Holguin, a brilliant human rights lawyer, brought a lawsuit on behalf of Jenny and all the other detained children. This became known as the Flores case.
In 1997, the government settled the case after fighting it vigorously for twelve years, even taking it to the United States Supreme Court. The Flores Settlement (called simply Flores) set the nationwide terms and conditions of the detention, release and treatment of children in immigration custody.
The settlement provided that within 120 days the government would issue regulations which would by design supersede it, with the understanding that such regulations would be written consistent with Flores. Although the government did not do so promptly, it has twice proposed regulations and then failed to pursue them. So the Flores Settlement has remained law for 21 years.
The government has tried repeatedly to dismantle the Flores Settlement.
In 2015, Judge Dolly Gee of the United States District Court of the Central District of California found that DHS, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) had breached the Flores Settlement. Among its many prior and ensuing attempts to minimize culpability, the federal government took her decision to the Ninth Circuit Court of Appeals and argued among other things that Flores applied only to unaccompanied children. Importantly the Ninth Circuit found that the Settlement applied to all children whether they arrived in family units or unaccompanied.
The Judge found that CBP had continued its practice of detaining children in “deplorable and unsanitary conditions”; failed to advise them of their rights under the agreement and interfered with their right to counsel; failed to make and record ongoing efforts aimed at release of children; commingled children with unrelated adults for extended periods of time; and kept children in locked and unlicensed facilities for weeks or months.
With respect to the finding that children were being detained in deplorable and unsanitary conditions, the Judge found that they had inadequate access to food and drinking water; inadequate hygiene (bathroom, soap, towels, toothbrushes); cold temperatures and inadequate sleeping conditions including twenty-four hour continuous light exposure.
The Judge gave the government a year to remedy all the violations she found and to comply with Flores.
This summer, as the parties were due to return to court to assess compliance, the federal government filed what Judge Gee characterized as a “cynical” motion to modify Flores. One of the key modifications was the right to detain children in unlicensed facilities indefinitely. The Judge rejected the government’s proposal, refusing to grant any part of their application.
The compliance hearing was held on July, 26, 2018, when the Judge found that conditions of detention for children remained in clear violation of the Flores obligations to which the federal government had agreed. She ordered the appointment of a Special Master to conduct independent oversight of detention facilities.
Newly proposed DHS regulations would eliminate protections for children.
The Flores Settlement is a straightforward statement of the government’s commitment to humane treatment of detention for children. In ruling on a government motion to modify the settlement this summer—which she forcefully declined to do—Judge Gee said the settlement is written in “clear and unambiguous language.”
The 200 page proposed DHS/HHS regulations issued on September 7, on the other hand, are a labyrinth. Per the Flores Settlement agreement, any replacement regulations should be consistent with Flores—protecting children in detention. But in fact, the government proposal would eviscerate the protections guaranteed by Flores for the 134,000 children detained last year and the increasing numbers of children who will be detained and in the years to come, and allow the indefinite detention of many children.