Agreement protecting migrant youth might undergo changes
AUSTIN, Texas — The Biden administration wants to partially end a 27-year-old agreement providing court oversight of how the federal government cares for migrant children in its custody.
The request, filed Friday, comes weeks after the Health and Human Services Department published its own rule on safeguards, effective July 1.
In a motion filed in California federal court, the government argued court supervision has outlived its purpose and new regulations are a better solution to ensure the safety of children.
“Twenty-seven years later, there is ... reason to believe ... the (Flores Settlement Agreement’s) goals have been (met). The Court should terminate the FSA as to HHS,” the government filing stated.
Children’s advocates say the Flores agreement has been instrumental in guaranteeing safety for children.
Here is a look at the Flores agreement and why it matters:
WHAT IS THE FLORES AGREEMENT?
The 1997 agreement was the result of more than a decade of litigation between attorneys 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 other plaintiffs were held for extensive periods of time, often in facilities with unrelated adults, and did not receive education or proper medical treatment.
The agreement set standards for the detention, treatment and release of minors. It mandates migrant children be released without delay to family, a child welfare program or an adult seeking custody if reunification is not possible. The vast majority of children released in such cases go to close relatives.
If release is not possible, the agreement says 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, supervision, medical services, toilets, sinks and ventilation.
All of that was originally the responsibility of the U.S. Immigration and Naturalization Service. After Sept. 11, 2001, reorganizations, the care of migrant children was split between the Department of Homeland Security and the Office of Refugee Resettlement, which is part of Health and Human Services.
Broadly, children are the responsibility of Homeland Security after they’re encountered crossing the border. Unaccompanied children are turned over to Health and Human Services within 72 hours and become that agency’s responsibility. They often live in facilities designed for children until they’re released to a relative or guardian, a process that can sometimes take years.
Under the Flores agreement, lawyers representing migrant children have the ability to visit the facilities and document conditions.
WHAT MIGHT CHANGE AND WHY?
The government moved to partially end court supervision, specifically for unaccompanied minors who are in Health and Human Services custody. The change won’t affect the treatment of children beforehand by Homeland Security.
“My only guess for why (that happened) now is because Flores counsel is a thorn in their side,” said Leecia Welch, deputy litigation director at Children’s Rights, which represents child migrants. “We can go into (their) facilities whenever we want ... and when they’re out of compliance, we can file motions to enforce, and they don’t like that.”
The government said the new rule taking effect in July “implements and goes beyond” the standards spelled out under the Flores agreement. Among other things, it creates an independent ombudsman’s office, establishes standards at temporary overflow shelters and formalizes advances in screening protocols for releasing children to families.
The 1997 settlement was not intended to last indefinitely, but rather until the creation of government regulations that meet the Flores standards.
WHAT HAPPENS NEXT?
The judge who oversees the Flores agreement would have to approve the government’s request.
Advocates for child migrants are expected to oppose the move, further straining President Joe Biden’s relationship with immigration supporters during an election year when the topic is expected to be a central voting issue.
A key area of concern by advocates has been how facilities that house unaccompanied migrant children in Texas and Florida will be monitored if Flores goes away. Both states stopped licensing the facilities in their states but the new rule says Health and Human Services can continue to use facilities in those states.