Trump seeks changes in landmark agreement limiting how long migrant children can be detained

Homeland Security Secretary Kirstjen Nielsen said "legal loopholes" in the Flores agreement "significantly hinder the department's ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country." (Jabin Botsford / Washington Post)

In 1985, a 15-year-old Salvadoran girl fleeing civil war in her country inadvertently came to represent all children detained by U.S. immigration authorities after being strip searched every day and housed with adult men while in prolonged government custody.

The resulting Flores agreement, as the class-action court settlement came to be known after the girl, Jenny Lisette Flores, has since served to protect the rights of minors who end up in the custody of immigration authorities, setting the terms of their care and release.

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On Thursday, the Trump administration took the first steps to get out from under that 1997 consent decree, filing new proposed rules on the treatment of minors that immigrant advocates said could lead to more children being detained for extended periods of time.

The move, which is virtually guaranteed to lead to a court fight, comes as the government is still scrambling to undo the aftermath of its widely condemned “zero tolerance” measures to separate children from their parents at the border and prosecute adults who crossed illegally.

The proposed rules could allow minors to be held indefinitely along with their parents, beyond the current limit, by relaxing the licensing requirements of facilities in which immigrant children can be detained. The Flores agreement requires that migrant children be released “without unnecessary delay” or placed in licensed facilities within five days, and during an emergency or influx of immigrant minors arriving at the border, within 20 days.

Calling the restrictions of the Flores settlement “legal loopholes,” Homeland Security Secretary Kirstjen Nielsen said they “significantly hinder the department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country.”

“This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress,” she said in a statement on the administration’s proposal.

The Trump administration has in effect placed the blame for its disastrous family separation policy, which resulted in thousands of children being removed from their parents, on the Flores agreement. The government has contended that the settlement puts it in a bind because no existing family detention centers meet the restrictive requirements for the treatment of minors. That forces authorities to release children while keeping their parents in custody, the government argues.

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In light of a federal judge’s order to avoid separating families, U.S. officials say they now have no choice but to release their parents as well, which government attorneys have argued incentivizes illegal border crossings.

Peter Schey, an attorney with the Center for Human Rights and Constitutional Law who represented detained children in the Flores case, said the administration’s characterization that the settlement led to increases in illegal immigration has “no basis in fact.”

“Refugee children should not be made to suffer inhumane treatment and prolonged and unnecessary detention just to satisfy President Trump’s zero tolerance approach to refugees seeking safety in the United States,” he said in a statement.

The proposed rule, which will be officially published Friday, comes after a federal judge in Los Angeles rejected the White House’s bid to indefinitely detain immigrant children caught crossing the border illegally together with their parents.

U.S. District Judge Dolly Gee in July denied a request by the Justice Department, which asked that the terms of the Flores settlement be relaxed so that it could comply with a San Diego federal judge’s orders to reunite the families separated at the border.

The judge criticized the government for what she called an attempt to shift the responsibility to the judiciary. Gee wrote in her ruling at the time that she found “dubious” and “unconvincing” the government’s contention that the settlement caused a “surge” in border crossings, writing that “any number of other factors” including civil strife and economic conditions back home could have caused the increase.

California Atty. Gen. Xavier Becerra on Thursday accused the administration of jeopardizing children’s welfare for political gain.

“Do we need to remind President Trump and his advisors that they’re playing with the well-being of children?” said Becerra, who was part of a coalition of 18 attorneys general who sued the Trump administration over family separations. “The Flores settlement agreement contains critical protections that have been in place for decades. We continue to oppose the unlawful, heartless family separation policy and detention of children that the federal government shamefully stands behind.”

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The American Psychological Assn. also chimed in, expressing concern for the lasting effects of the administration’s policies on the detained children.

“Research has shown that immigrant detainees are particularly vulnerable to psychological stress. Furthermore, the longer the detention period, the greater the risk of depression and other mental health symptoms for immigrants who were previously exposed to interpersonal trauma,” association President Jessica Henderson Daniel wrote in a statement.

The publication of the rule opens up a 60-day window for the public to comment. The new regulations, the government wrote in its proposed rule, “would satisfy the basic purpose” of the Flores agreement while “ensuring that all juveniles in the government’s custody are treated with dignity, respect and special concern for their particular vulnerability as minors, while doing so in a manner that is workable in light of subsequent changes.”

The rule will undoubtedly be challenged in court by immigrant advocates, setting the stage for yet another round of legal wrangling over the Trump administration’s hard-line immigration policies.

Advocates say that immigration authorities have already been flouting the terms of the Flores settlement and that detention facilities are rife with examples of abuse and mistreatment. Many said they were particularly concerned about the proposal that that the federal government license its own detention centers when it was already doing a poor job of protecting children in custody.

“The same administration that forcibly separated children from their parents and knowingly inflicted trauma on them cannot be allowed to set the standard of care for immigrant children,” said Michelle Brané, director of the Migrant Rights and Justice program at the Women’s Refugee Commission.

Denise Gilman, who directs the University of Texas Law School Immigration Clinic in Austin, said advocates would probably file for an injunction to block the rule from taking effect. Gilman said that some families are already detained for more than 20 days, particularly those who speak indigenous languages, and that the number could grow as the new policy is litigated.

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“We could stop implementation before it starts,” she said.

Times staff writers Molly Hennessy-Fiske in Houston and Cindy Carcamo in Los Angeles and San Diego Union-Tribune staff writer Kate Morrissey in San Diego contributed to this report.

4:30 p.m.: This article was written through and updated throughout.

11:30 a.m. This article was updated with reaction from the Coalition for Humane Immigrant Rights.

This article was originally published at 8:25 a.m.

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