As federal authorities continue moving to end a 28-year-old consent decree governing how the children and families of migrants are detained, advocates of the agreement are claiming evidence shows that ending the so-called “Flores settlement” would inflict lasting trauma on children in federal custody, according to court papers obtained Monday.
Justice Department officials last month filed a motion to end the Flores settlement agreement.
Over the weekend, a coalition of immigrant-rights groups filed an opposition motion in Los Angeles federal court to the federal government’s motion to terminate the agreement. The coalition motion alleges harm would be caused to children in custody by stripping away the only enforceable safeguards for their health and safety, and opening the door to indefinite detention in “harsh, prison-like” family detention facilities.
The government’s ongoing failure to meet the agreement’s basic legal requirements allegedly makes it clear that internal agency policies are no substitute for court-enforced standards, according to the coalition motion.
Approved in 1997, the Flores settlement requires that children be held in licensed, child-appropriate facilities and released to family members or guardians as quickly as possible. Under the terms of the settlement, Flores co-counsel are permitted to visit detention sites where children are being held and hear directly from them about their treatment and the duration of their detention.
The agreement remains one of the only legal tools to prevent the long-term incarceration of children. Child psychologists have long warned that detention of even two weeks can have severe developmental and health consequences that can last a lifetime, the coalition maintains.
“Our government has shown us time and again it cannot be trusted to protect the rights of children in its custody,” said Leecia Welch, deputy litigation director at Children’s Rights.
“At this very moment hundreds of terrified children and families are being held in a family detention facility in Dilley, Texas,” Welch said in a statement Monday. “Children are having nightmares, loss of appetite, and worsening health conditions. They have little to do, and toys are in short supply. Children are hungry, sleep-deprived, bored, and hopeless. Mothers have to beg for diapers, watch as their children lose weight and deteriorate from the stress, and do much of the parenting alone because fathers are separated at night and much of the day. Flores is the only line of defense between these kids and an administration that wants to lock them up like criminals.”
A hearing in the case was scheduled in downtown Los Angeles on Monday and July 18.
“After 40 years of litigation and 28 years of judicial control over a critical element of U.S. immigration policy by one district court located more than 100 miles from any international border, it is time for this case to end,” the Justice Department wrote in its motion last week.
The Justice Department attorneys argued that, since 1997, the judges overseeing the agreement have “controlled federal policy regarding the custody of alien children who are in the United States without immigration status, enormous, cardinal changes have occurred: Surges of aliens have entered the U.S. in between ports of entry across the southwest border, including large groups of aliens who voluntarily surrendered to border patrol — surrenders orchestrated by traffickers; the demographics of aliens arriving at the border have shifted to include significantly higher numbers from countries outside the western hemisphere and higher numbers of children; a global pandemic necessitated the government’s utilization of its expulsion authority to protect public health; and the subsequent lifting of the policy led to an upheaval in immigration policy over two years.”
The attorneys for the federal government argue that the agreement constrains the Trump administration from addressing the changes because of “ossified federal immigration policy.”
Sergio Perez, executive director of the Santa Ana-based Center for Human Rights and Constitutional Law, has said the “Trump administration is unique in the fact that it has effectively closed down our borders and is choosing to detain children and families for extended periods of time.”
Perez argued that the migrants are experiencing “horrible conditions where families with young children are being held in facilities not meant to jail individuals, places like airports, regular office buildings, places that don’t provide a bare modicum of privacy for families of young children.”
In some instances, the migrants are being held in “rooms meant for interrogations and interviews for short stays and they’re housing people for weeks.”
Perez said the “length of stay for these families and children are lengthening and the conditions that have been detailed to us for these vulnerable folks speak to the emergency situation.”
The advocates for the agreement say the percentage of children held for three days or more has quadrupled from 2.4% in May of last year to 10.3% in February of this year. The number of children being held for longer than two weeks has increased sevenfold, they say.