On August 21, 2019 the Administration announces a final new rule that would, in effect, overturn the 1997 Flores settlement.

The Flores settlement is just that, a legal agreement settled in 1997 that outlines certain protection for immigrant children while in U.S. custody. Its most well-known provision, recently, prohibits the detention of children for more than 20 days. When the Administration last October 2018 issued a proposed regulation, they argued that there were no regulations promulgated in 1997 after the settlement (parties agreed to a stipulation in 2001 there would be regulations promulgated) so they would therefore create them more than eighteen years later.

The Flores settlement developed over several administrations. It had its origins during the 1985 Reagan Administration when the ACLU went to court on behalf of Jenny Flores, a fifteen-year-old girl who fled the civil war in El Salvador. Included in her harsh treatment was a strip-search, being locked up in a juvenile facility for months without education, recreation and other supports while awaiting deportation.
By 1992 the Supreme Court agreed with the then George H W Bush Administration arguments that her treatment had not violated due process rights and the Court re-directed the case back to the lower courts in California (where the case originated). The government then agreed to negotiate a settlement before a final decision was made. The “Flores v. Reno” (attorney general) case was agreed to and signed by Clinton Administration Immigration and Naturalization Service (INS) Commissioner Doris Meissner in 1997. Under the agreement the government agreed to release unaccompanied minors/children to relatives (Flores had a non-parent relative willing to take her in) and they set limits in detention and agreed to certain humane treatment standards and living conditions.

Protections were further expanded under the post-9/11 legislation that created the office of Homeland Security and further amended in the 2008 reauthorization of Trafficking Victims Protection Act including provisions requiring the Border Control to turn over unaccompanied minor to HHS and the Office of Refugee Resettlement within 72 hours with placements to follow.
In 2015 the protections were expanded as a result of another ACLU lawsuit during the Obama Administration and the Flores protections were extended to children with their parents. Under the ruling by U.S. District Court Judge Dolly Gee the maximum time in detention of 20 days was extended to families with children.

When the Administration issued their final regulations on Flores last month, several groups filed suit in U.S District Court to block the new rule. That case is now before Judge Gee. In addition, the Trump Administration is seeking a dismissal of that suit which is also being litigated along with the direct challenge to the new rule. That dismissal hearing is scheduled for September 20.

Last October 2018, CWLA submitted comments on the Administration’s proposed regulation that, in part, restricts child detentions to no more than 20 days. In our comments in 2018, we said, “CWLA opposes the harmful and dangerous practice of detaining children—alone or with their parents—because it undercuts what is in the best interest of these children. We also firmly believe that all facilities overseeing the care of children should be subject to standards established by an agency with expertise in child welfare.”

CWLA highlighted concerns over the proposed new licensing standards in the proposed regulations:

“The rule proposes an alternative federal licensing scheme, consistent with ICE standards, for family residential centers that would govern the operation of family detention…Within child welfare, the primary purpose of residential services is to provide specialized therapeutic services in a structured environment for children with special developmental, therapeutic, physical, or emotional needs. The goal of these programs is to help families not to cause further trauma to the children and their parents.”

The final rule could take effect in October pending how the Court deals with the two current challenges.

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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