By Phil Gasperetti*
The Flores Settlement Agreement (FSA) was the first document to set out administrative guidelines for the care of children in the immigration detention system.[i]The 1997 agreement stipulated the administrative procedures in which Immigration and Naturalization Services (INS) would provide comprehensive physical, spiritual, and mental health necessities along with a general right to privacy.[ii]Furthermore, it required that the INS shall “(1) ensure the prompt release of children from immigration detention; (2) place children for whom release is pending, or for whom no release option is available, in the ‘least restrictive’ setting appropriate to the age and special needs of minors; and (3) implement standards relating to care and treatment of children in U.S. immigration detention.”[iii]
On September 7, 2018 the DHS and DHHS put out a joint proposal regarding the proposed regulations of children in immigration detention.[iv]In effect, these regulations serve as the “final application” of the FSA by these agencies which would lead to the termination of the very protections these regulations purport to codify.[v]
The issue is that these proposed changes do not adhere to the letter and spirit of FSA. The changes allow the relevant agencies to remove time limits on length of family detention, change licensing requirements for family detention facilities, expand definitions of emergency and influx, provide for continual reassessments of unaccompanied minors (UACs), and limit use of parole.[vi]The rest of this piece will examine the history of the FSA, focus on how these proposed changes effectively kill the FSA’s stipulated, albeit tenuous protections for minors in detention, and the effects and solutions to such changes.
The settlement derived from a case involving Jenny Lissette Flores, a 15-year old, who fled the violence of El Salvador to come to the U.S in 1985.[vii]Flores intended to find her aunt living in the US, but was apprehended by the INS at the border.[viii]Flores was taken into custody by INS, handcuffed, strip searched, and placed in a juvenile detention center where she spent the next two months waiting for her deportation hearing.[ix]Despite her lack of a criminal record, INS refused to release her to her aunt because of its prior policy against releasing minors to third-party adults.1[x]She was kept in a spartan facility with little to no educational resources or recreational activities.[xi]In 1985, the ACLU and four minors, including Jenny, filed a class action lawsuit to remedy the treatment and detention of undocumented immigrant minors.[xii]The lawsuit named the INS, the INS Commissioner, and two private operators of INS detention facilities as defendants.[xiii]
The lawsuit made its way to the Supreme court, who found that INS’s release procedures did not violate the minors’ substantive or procedural due process rights and that the government must only provide adequate care for them.[xiv]The case was remanded to the California district court.[xv]Prior to the new trial, the parties agreed to the FSA stipulating the administrative procedures in which INS would provide “food, clothing, grooming items, medical and dental care, individualized needs assessments, educational services, recreation and leisure time, counseling, access to religious services, contact with family members, and a reasonable right to privacy.”[xvi]Furthermore, the FSA required that the INS to prioritize the prompt release of children and keep them in the least restrictive, most humane settings as possible.[xvii]
While the FSA initially applied to the INS, The Homeland Security Act of 2002 (HSA) significantly impacted the administrative structure of the Nation’s immigration agencies. INS was taken out of Department of Justice (DOJ) and absorbed into the newly created Department of Homeland Security (DHS).[xviii]The HSA split INS’s law enforcement responsibilities between two newly created agencies, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), which assumed the responsibilities of border protection, detention, and deportation.[xix]Furthermore, HSA created the Office of Refugee Resettlement (ORR) under the direction of the Department of Health and Human Services (DHHS) to take responsibility for the welfare of all unaccompanied minors detained.[xx]These successor agencies are bound to follow the FSA.[xxi]In 2008, these agencies’ administrative responsibilities in regards to unaccompanied minors were further modified by the Trafficking Victims Protection Reauthorization Act (TVPRA).[xxii]The statute requires that “in the absence of exceptional circumstances, DHS or any other federal agency must actually transfer the unaccompanied child out of their custody within 72 hours.”[xxiii]
Proposed Changes and Potential Effects
So why is this relevant to the current immigration crisis facing our Nation? Originally, the FSA was to terminate within five years of court approval or within three years after the court found INS to be in “substantial compliance” with the FSA.[xxiv]However, after years of the regulations not being formalized by the government agencies, in 2001, the parties “stipulated that the Settlement would terminate forty-five days after the government’s final publication of regulations applying the FSA.”[xxv]
On September 7, 2018, DHS and DHHS put out a joint proposal specifying those final regulations.[xxvi]Under the FSA, the INS (and its successor agencies) were required to enact a policy favoring release of a minor “without unnecessary delay.”[xxvii]In the case where a minor was not detained in order to ensure a timely appearance before an immigration court, the minor could be released to extended family members or a licensed human rights organization if a parent or legal guardian was not available.[xxviii]Under the proposed changes, DHS refuses to acknowledge authority to release a minor to anyone, but DHHS, a parent, or legal guardian.[xxix]Furthermore, the changes dictate that “aliens, including minors in family units, who are subject to expedited removal and who have not been found to have a credible fear or are still pending a credible fear determination are subject to mandatory detention.”[xxx]In practice, this would allow ICE to detain children with their family until the unit could be seen by in an immigration court.[xxxi]The average nationwide wait time for such proceedings is 721 days, with some areas exceeding over 1,400 days.[xxxii]This change would undoubtedly increase the amount of minors who could be detained for longer periods of time.
In regards to UACs, the proposed changes require DHS officials to make a determination of whether the detainee meets the definition of a UAC each time they encounter the detainee.[xxxiii]Furthermore, the resolution goes on to state that “once an alien no longer meets the definition of a UAC, the legal protections afforded only to UACs under the law cease to apply.”[xxxiv]Not only does this provision allow DHS a greater share in the age determination process of accompanied minors, but it also it is less specific than the FSA and could lead to situations where a child is mistakenly classified as an adult.[xxxv]Moreover, the “proposed regulations do not specify when medical and dental examination are required and provide no guidance as to the level of training or expertise needed to conduct such examinations.”[xxxvi]This represents a significant shift from TVPRA approach, which required DHS to notify DHHS of any “claim or suspicion” that person detained was under the age of 18.[xxxvii]Furthermore, under TVPRA, DHHS was designated to develop procedures for age determination, with the caveat “that ambiguous forensic examination results will be resolved in favor of the child; that is, if the child is deemed to be between the ages of 16 -18, the child will be treated as 16.”[xxxviii]Given the hostile attitude this current administration displays towards undocumented immigrants seeking shelter in the US, it is possible to imagine the new regulations will be abused to favor the designation of borderline cases as adults instead of minors.[xxxix]This of course further would strip away due process protections of detainees.
In summary, the proposed regulations could lead to an expansion of the amount of minors detained by immigration services for longer periods of time. Medical experts have stated “that the indefinite detention of children and families is a form of trauma and is likely to cause lasting psychological harm.”[xl]Children and families in detention often experience persistent sadness, despair, worry, frustration, poor health, social impairment, and spiritual anguish.[xli]This is an anathema that cannot be allowed to persist. When the government continues to deprive these people of their natural rights, it cuts against the fundamental values of our Nation.
The appropriate and moral solution to the issue of minor detention and detention at large is the general amnesty and naturalization of all persons deemed “illegal” by the government. No person should be locked in a cage for simply existing in a place especially when most of these people locked in these cages are fleeing from violence and societal instability. Welcoming these individuals as citizens would strengthen the character and fabric of our nation and would allow these people to fully engage in it’s wellbeing. Hopefully, our Nation’s laws will reflect this maxim one day, but until then, we must continue to fight for the people delegated to the shadows of our Society.
*Phil Gasperetti is a Junior Editor on MJEAL. He can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i]Rebeca M. Lopez, Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant Children in U.S. Custody, 95 Marq. L. Rev.1635, 1648 (2012).
[ii]Stipulated Settlement Agreement at 7-8, Flores v. Reno, No. CV 85-4544- RJK(Px) (C.D.Cal. Jan. 17, 1997), available at http://www.aclu.org/files/pdfs/immigrants/ flores_v.meeseagreement.pdf.
[iii]Lopez, supra note 1, at 1650.
[iv]Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45,486 (proposed Sep. 7, 2018).
[v]Summary of Proposed Regulations Regarding Children and Immigration Detention, Nat’l Immigration Forum (Jan. 11, 2019, 4:59 PM), https://immigrationforum.org/article/summary-of-proposed-regulations-regarding-children-and-immigration-detention/
[vii]Lopez, supra note 1, at 1648.
[ix]Lisa Rodriguez Navarro, An Analysis of Treatment of Unaccompanied Immigrant and Refugee Children in Ins Detention and Other Forms of Institutionalized Custody, 19 Chicano-Latino L. Rev.589, 596 (1998).
[x]Lopez, supra note 1, at 1648.
[xiv]Id.; Natalie Lakosil, The Flores Settlement: Ripping Families Apart under the Law, 48 Golden Gate U. L. Rev.31, 36 (2018).
[xv]Lopez, supra note 1, at 1650.
[xvi]Stipulated Settlement Agreement at 7-8, Flores v. Reno, No. CV 85-4544- RJK(Px) (C.D. Cal. Jan. 17, 1997), available at http://www.aclu.org/files/pdfs/immigrants/ flores_v.meeseagreement.pdf.
[xvii]Lopez, supra note 1, at 1650.
[xxii]M. Aryah Somers; Pedro Herrera; Lucia Rodriguez, Constructions of Childhood and Unaccompanied Children in the Immigration System in the United States, 14 U.C. Davis J. Juv. L. & Pol’y 311, 354 (2010).
[xxiii]Id. at 354.
[xxiv]Natalie Lakosil, The Flores Settlement: Ripping Families Apart under the Law, 48 Golden Gate U. L. Rev.31, 37 (2018).
[xxvi]Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45486 (proposed Sep. 7, 2018).
[xxvii]Stipulated Settlement Agreement at 10, Flores v. Reno, No. CV 85-4544- RJK(Px) (C.D. Cal. Jan. 17, 1997), available at http://www.aclu.org/files/pdfs/immigrants/ flores_v.meeseagreement.pdf.
[xxix]Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45502 (proposed Sep. 7, 2018).
[xxxi](Summary of Proposed Regulations Regarding Children and Immigration Detention, Nat’l Immigration Forum (Jan. 11, 2019, 4:59 PM), https://immigrationforum.org/article/summary-of-proposed-regulations-regarding-children-and-immigration-detention/.
[xxxiii]Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45497 (proposed Sep. 7, 2018).
[xxxv]Summary of Proposed Regulations Regarding Children and Immigration Detention, Nat’l Immigration Forum (Jan. 11, 2019, 4:59 PM), https://immigrationforum.org/article/summary-of-proposed-regulations-regarding-children-and-immigration-detention/.
[xxxvii]M. Aryah Somers; Pedro Herrera; Lucia Rodriguez, Constructions of Childhood and Unaccompanied Children in the Immigration System in the United States, 14 U.C. Davis J. Juv. L. & Pol’y311, 354 (2010).
[xxxix]See e.g. Scott Martelle, About Those Immigrants Trump Referred to as ‘Animals’, L.A. Times,Mach 17, 2018, at Opinion, available at https://www.latimes.com/opinion/la-ol-enter-the-fray-about-those-immigrants-trump-referred-to-1526569123-htmlstory.html.
[xl]Ryan Matlow et al., Reducing Protections for Noncitizen Children — Exacerbating Harm and Trauma, New Eng. J. Med. (November 21,2018), https://www.nejm.org/doi/full/10.1056/NEJMp1814340.