The Flores agreement has protected migrant children in the US for almost 3 decades. That could change

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AUSTIN, Texas (AP) — The U.S. government wants to partially end a 27-year-old agreement that provides judicial oversight of how the federal government cares for migrant children in its custody.

The petition filed before a federal judge on Friday comes weeks after the Department of Health and Human Services (HHS) published its own rule on protective measures, which will take effect on July 1 and, According to Secretary Xavier Becerra, it will establish “clear rules for the care and treatment of unaccompanied (migrant) children.”

In a motion filed in federal court in California, the government argues that judicial oversight has exceeded its purpose and that new regulations are a better solution to ensure the safety of minors.

Children’s advocates say what is known as the Flores agreement has been instrumental in ensuring safe conditions for children, especially with the increase in border apprehensions over the past two years, which included nearly 300,000 unaccompanied minors.

Here’s a look at the Flores deal and why it matters:

WHAT IS THE FLORES AGREEMENT?

The 1997 settlement was the result of more than a decade of litigation between lawyers 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 Salvadoran. The lawsuit detailed how Flores and the other plaintiffs were held by the government for long periods, often in facilities with unrelated adults, and did not receive adequate education or medical care.

The agreement establishes standards for the detention, treatment and release of minors. Orders that migrant children be released without delay to their family, a child welfare program, or an adult who requests custody if family reunification is not possible. The vast majority of children released in these cases are handed over to close relatives while their immigration processes are resolved.

If release is not possible for safety reasons, the agreement states that the minors must be housed in the least restrictive environment that is appropriate.

The agreement also sets standards for how licensed shelters must provide food, water, adult supervision, emergency medical services, toilets, sinks, temperature control and ventilation.

All of this was originally the responsibility of the United States Immigration and Naturalization Service. Following the reorganizations caused by the attacks of September 11, 2001, care of migrant children was divided between the Department of Homeland Security (DHS) and the Office of Refugee Resettlement, which is part of HHS.

Generally speaking, children become the responsibility of DHS after they are apprehended crossing the border. Unaccompanied children are turned over to HHS within 72 hours and become the responsibility of that agency. They often live in facilities designed specifically for children until they are released to a family member or guardian, a process that can take days, months or sometimes years.

Under the Flores agreement, attorneys representing migrant children can visit those facilities and document conditions. Over the years they have repeatedly reported problems.

WHAT COULD CHANGE AND WHY?

The government intends to partially end judicial oversight, specifically for unaccompanied minors in HHS custody. The change will not affect how children are treated beforehand by DHS.

“The only reason that comes to mind why they would want to do this now is because the Flores policy is a thorn in their side,” said Leecia Welch, deputy director of litigation at Children’s Rights, which represents migrant children. “We can go into (their) facilities whenever we want, we can talk to the youth there, and when they don’t comply, we can file motions to get them to comply, and they don’t like that.”

The government says the new rule, which will go into effect in July, “applies to and goes beyond” the rules established in the Flores agreement. Among other things, it creates an independent human rights ombudsman’s office, establishes minimum standards in temporary emergency shelters, and formalizes advances in selection protocols for the release of children to families and sponsors, and for legal services.

The 1997 agreement was not designed to be in effect indefinitely, until the creation of government regulations that complied with the Flores standards.

The judge overseeing the Flores deal would have to approve the government’s request.

It is expected that advocates for migrant children will oppose the government’s measure, which will further strain President Joe Biden’s relations with supporters of immigration during an election year in which the issue is expected to be highly relevant. .

Jennifer Podkul, vice president of policy and advocacy for Kids In Need of Defense, said the group recognizes the government’s efforts to create a rule similar to the Flores agreement, but is concerned it would eliminate third-party oversight of facilities that house children.

“What I hope is that there is a commitment to transparency, every time a child is in government custody, to ensure that these children who have already suffered so much trauma and harm are not further harmed at the hands of the United States government.” ”Podkul said.

Podkul noted that some states like Texas have stopped licensing such centers, but the new rule says HHS can continue using facilities in those states regardless.

An appeals court had previously granted a request by the Trump administration to end the Flores agreement’s requirements for the Department of Health in 2020, although the change never took effect. An attempt to simultaneously lift oversight at DHS was rejected.