DHS plan to close Flores ‘loophole’ likely to get tied in knots
Cronkite News
WASHINGTON – The Trump administration has long complained about the Flores agreement, a 1997 court ruling that severely limits the amount of time that migrant children can be detained by the government.
In theory, getting rid of the decades-old policy that the administration calls an immigration law “loophole” that incentivizes border crossing and forces family separations was only a matter of writing new regulations. Which the administration did last week.
“All the parties in the Flores case agreed years ago that the settlement would terminate 45 days after the government publishes final regulations implementing it – something neither the Clinton, Bush, nor Obama administrations did,” said Michelle Mittelstadt, director of communications for the Migration Policy Institute.
In reality, however, Flores is not likely to go down without a fight – even if the administration can convince a federal judge it has a better way, advocates are sure to go back to court to challenge the new plan.
“To say we have skepticism of their ability to manage such a detention operation is an understatement,” said Carlos Guevara, senior policy advisor for UnidosUS, a nonprofit advocating for Latino rights.
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Although McAleenan said that DHS would establish a “high, national standard of care” for children and families in federal custody, advocates wondered how those standards would be enforced. “We have seen that detention facilities for immigrants have subpar, horrific conditions,” said Andrea Senteno, regional counsel for the Mexican American Legal Defense and Educational Fund. “This administration can’t be trusted to self-police and ensure that those facilities would meet the requirements of the Flores settlement agreement to house children in safe and sanitary conditions.” Or, as Guevara said, it would be “the fox overseeing the chicken coop.” Homeland Security officials did not respond to a request for comment on the criticism. The Flores agreement rose out of a 9-year legal battle over the treatment of minors in detention facilities. It is named for one of those minors, Jenny Lisette Flores, a 15-year-old Salvadoran girl who fled her country in 1985 to join her aunt in the United States. Flores was arrested and placed in a juvenile detention center, where she was handcuffed and strip-searched, according to a 2012 Marquette Law Review article. She spent two months in detention, awaiting her deportation hearing. Flores and several other minors sued the Immigration and Naturalization Service, the country’s primary immigration agency at the time, to demand improved conditions for unaccompanied minors in federal custody. The suit ended with the 1997 settlement agreement that required certain standards of care for minors in immigration custody, including “safe and sanitary” facilities, access to toilets and sinks, water and food “as appropriate” and medical assistance, among other provisions. The agreement also mandated that unaccompanied minors be released from custody after 20 days, with the ultimate goal of reuniting them with a legal guardian – often, one in the U.S. “The government is supposed to make every effort to release the child to the appropriate individual, whether that be a parent or a legal guardian,” Senteno said. “The agreement itself favors release.”#BREAKING: We’re taking the Trump Administration to court to defend children from the irreparable harm caused by unlawful detention.
— Xavier Becerra (@AGBecerra) August 26, 2019
Repealing the #FloresSettlement isn’t just morally reprehensible, it’s illegal. https://t.co/cyeTXlJHyK
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Mittelstadt said the changes are not likely to come anytime soon. “You’ve seen the administration actually acknowledging, in many cases, that they know their actions are going to be challenged,” she said. “So one would imagine that they’ll be in this case as well.” Critics say the latest plan will not stem the flow of migrants, who are fleeing problems in their home countries, but is further proof of what they call the Trump administration’s animosity toward immigrant communities. “This move to detain immigrant children for long periods of time – not only is it cruel, but it fits right into the administration’s attack on the Latino community, because it knows that the vast majority of individuals that will be affected by this rule are Latino immigrants,” Senteno said. For more stories from Cronkite News, visit cronkitenews.azpbs.org.The new rule concerning Flores would allow families to be remain together in family residential centers throughout their immigration proceedings. Their cases would be adjudicated quickly, and they would not be held in USBP custody, meaning my agents could get back on the line. pic.twitter.com/zVST9Y1b38
— USBPChief (@USBPChief) August 24, 2019
Federal Register Notice
Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children
(August 23, 2019)
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