As the debate on family separation flares along the southern border, President Donald Trump’s signature issue will boil down to a battle over a federal court agreement that most media were unfamiliar with until last week.
The Trump administration wants to do away with the 1997 “Flores Settlement,” which in recent years has limited the government’s ability to keep immigrant families detained for an extended period of time. Trump says the case is the reason why his administration is “forced” to separate parents from their children for criminal prosecution.
The policy push from May to a few days ago was to separate the children from the parents, and send them to facilities operated by the Department of Health and Human Services and contractors for unaccompanied minors. The parents were sent to immigrant detention centers.
This resulted in more than 2,500 children being separated from their parents in less than two months. As of June 20, there were 589 individuals at Karnes detention facility, 1,978 at South Texas facility, and 56 at Berks facility. An April 2018 GAO report lists the total capacity of the three as 3,326.
As of Monday, only 522 have been reunited with their guardians.
By allowing children to remain with their parents, Trump has reverted to the Obama-era policy of keeping immigrants in family detention centers. The catch here is that those facilities need to be complying with the Flores settlement.
That means the federal government needs to do two things. One is give the children with a relative or family friend, rather than keeping them in separate custody. The second is to keep the children in that custody in the “least restrictive conditions” possible.
At one point, family detention was indefinite, with some women and children remaining for over a year at a time in the most extreme cases. But Flores changed that in 2015, limiting family detention to 20 days.
Origins of the Flores Settlement
In 1985, 15-year-old Jenny Flores crossed the US border to flee El Salvador’s civil war. She was detained by the now defunct United States Immigration and Naturalization Service (INS) in California, during a time when a Reagan appointee tightened restrictions on releasing detained immigrant minors.
She could only be released to her mother. But Jenny’s mother, herself undocumented, was afraid to come forward for fear of being deported to El Salvador. INS refused to release Jenny to her aunt for two months because they alleged that unaccompanied minors could not be released to “third-party adults.” Flores’ attorneys filed a complaint stating she and other minors had been strip searched, as well as searched vaginally in a CoreCivic (then Corrections Corporation of America) facility.
Over a week later, a judge issued an injunction freeing Jenny and other plaintiffs.
The case was eventually settled by the Supreme Court in 1996. The final ruling requires that juveniles be held in a non-secure facility licensed to care for minors. Minors are to be released without delay to a legal guardian, family member, or adult seeking custody of the juvenile. In 2018, Flores applies to juvenile individuals detained by the Department of Homeland Security (DHS) and Human Services’ Office of Refugee Resettlement.
Despite finding that the release procedures in 1985 had not violated Flores’ due process rights, the case became integral to detention advocates because it holds facilities to the standard of meeting state licensing requirements for the care of dependent children. Legal immigration advocates allege that ICE’s current no-release policy detainees with children violates the terms of the Flores settlement.
During winter of 2015, Peter Schey and Carlos Holguin, lawyers at the Center for Human Rights and Constitutional Law in Los Angeles, filed a motion to enforce Flores, stating that all three agencies (ICE, DHS, and CBP) were in violation of the settlement. The motion claims that the Texas and Pennsylvania families are not licensed, non-secure facilities where children are only in short-term custody.
Government attorneys countered that the Flores agreement did not apply to children in family detention centers. In July 2016, Judge Dolly M. Gee of the Federal District Court in Central California ruled that conditions at Karnes and Dilley failed to meet the legal standards of the Flores agreement.
According to a summary from the Congressional Research Service, Flores requires minors who would be kept in federal custody be placed in the “least restrictive conditions” and be provided with some basic necessities, like food and water, access to medical treatment, access to running water, and that they be separated from adults to whom they had no relation. Advocates argue the very existence of family detention violates that.
The House of Representatives hearing that same month resulted in 178 House Democrats, led by U.S Representative Zoe Lofgren (D-CA) to send a letter to DHS demanding the end of family detention, citing Judge Gee’s decision. The case has been appealed by the government to the U.S. 9th Circuit Court of Appeals.
The Department of Homeland Security agreed to decrease the length of detention for children and mothers that did not pose a national security risk to 20 days. Prior to October 23, 2015, some immigrants remained in detention for as short as three weeks, and as long as 13 months.
So What Does This Mean?
In the current interpretation of Flores, two of the three current family detention centers violate the settlement agreement.
The South Texas Family Residential Center in Dilley, Texas, is not licensed. Berks County Residential Center is licensed as a secure facility, but only has a few hundred beds, and several complaints about medical care and detainee rights that put into question its licensure. Karnes’ license is invalidated.
Together, they have about just over 3,300 beds, according to a 2018 DHS report to Congress.
In the Executive Order, Trump says the Secretary of Defense will take all “legally available measures” to provide any existing facilities available for housing of “alien” families, and will build more in consistency with the law. Meanwhile, he had Attorney General Jeff Sessions file a request Thursday with the US District Court for the Central District of California to modify Flores. The government wants to detain families together throughout “the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”
That means during the duration of a legal proceeding. According to TRAC, such proceedings take an estimated two years.
That means going from 20 days to two years.
Clara Long is a senior US researcher for Human Rights Watch, and has been assessing conditions in immigrant detention centers for many years. She says “detaining children for prolonged periods of time — as the government is attempting to do with this motion — is very harmful.”
Long says indefinite and long detention is particularly harmful.
“The research clearly shows uncertainty causes profound distress,” she said. “It matches what I heard in interviews in family detention in 2015 after the Obama administration also attempted to flout the Flores requirement to place kids in the ‘least restrictive setting available’ and release them ‘without unnecessary delay’ to a parent, adult relative or guardian.”‘
Long says many families begin to experience depression, anxiety and suicidal thoughts.
Getting Flores changed is a stretch, and Judge Gee isn’t expected to approve further adjustments. Regardless, the federal government is working to move their plans forward. Questions remain if any additional facilities, including those housing children and mothers on military bases, comply with Flores.
Most current ORR facilities are licensed childcare centers, but the policy until recently had been that they only hold children.
And although Trump administration is temporarily putting a pause to referring border-crossers for criminal prosecution partially due to the amount of beds available at facilities, plans are under way to house more people on military bases, and build additional facilities.
The Office of Refugee’s contractors, including Southwest Key Programs Inc., have opened a slew of positions, ranging from caseworkers to medical coordinators.
Sarah Betancourt is a bilingual reporter based in New England. Her work on immigration and criminal justice has appeared in the Associated Press, The Guardian, The Boston Globe, and the New York Law Journal. Follow her on Twitter @sweetadelinevt.