Hispanic Heritage Month: Blocking the Trump Administration

The Trump administration was rebuked by a federal judge on September 27 for its attempt to undo the pivotal Flores Settlement Agreement in an effort to indefinitely detain immigrant children fleeing to the United States for asylum. The judge rejected the sweeping attempt made by the administration that would have given them the authority to keep families in detention centers for as long as it takes to fully process their asylum case and essentially revoked the Flores Settlement Agreement.  This is a critical finding that reflects the well-documented harms of detention on children.

In 1997, the United States reached an agreement in Flores v. Reno, which resulted in what is known as the “Flores Settlement Agreement”. The Flores Settlement set the standards for the detention and treatment of unaccompanied immigrant children in order to ensure the protection and safety of children. In 2015, the protections were extended to minors who were accompanied by parents or guardians and the detention of immigrant youth was limited to 20 days.  Some of the critical provisions outlined in the Flores Settlement require that:

• Children should be placed in the “least restrictive setting appropriate to the minor's age and special needs.”
• The Department of Homeland Security (“DHS”) must operate with a policy favoring the release of the child to a parent, legal guardian, adult relative, or to a licensed program. DHS must also make a continuous effort toward family reunification and release, as well as maintain up-to-date records of minors held for longer than 72 hours, including biographical information and hearing dates.
• Children have the right to seek judicial review with any U.S. District Court with jurisdiction over the venue to challenge their placement determination or the facility’s noncompliance with standards set forth in the settlement.
• Children must receive physical care, food, clothing, grooming items, routine medical and dental care, immunizations, medication, an individualized needs assessment for each child, an educational assessment and plan, a statement of religious preferences, an assessment identifying immediate family members in the United States, education services and communication skills, English language training, recreation and leisure time, and access to social work staff and counseling sessions. Visitation and contact with family members regardless of immigration status and family reunification services are also required.
• Children be provided notice of their rights, including information on the availability of free legal assistance, the right to be represented by counsel at no expense to the government, the right to a deportation or exclusion hearing before an immigration judge, and the right to apply for political asylum or to request voluntary departure in lieu of deportation.

The Flores Settlement is critical to protecting children caught in the U.S. immigration system--and it must be preserved. Yet, as advocates of youth justice, we must not lose sight of the fact that the Flores Settlement provides a “floor” or minimum standard of care for immigrant children. As we have learned when youth are incarcerated in both the juvenile and adult criminal justice systems, detention imposes significant and long term harm on children, including worsened health and life outcomes.  This fact has pushed states to reduce youth incarceration by more than 55% over the past 20 years and serve more children in their homes and communities.

Although we are relieved that the Flores Settlement Agreement remains intact, it is a wake-up call to advocates that we must be doing more. It provides the bare minimum of protection for youth in immigration detention and does little to prevent the trauma and stress that manifest as a result of detention. As youth justice advocates, we must continue to speak out and educate others on the harm caused by detention. All children deserve more than just the bare minimum.