Guest post by Sumona Gupta. Sumona is a Socio-Legal Studies student at the University of Alabama in Tuscaloosa, Alabama. Her work and studies center on immigrant rights in the Southeastern U.S.

The Flores Settlement Agreement (FSA), intended to protect the wellbeing of detained undocumented children, was facing the possibility of termination at the hands of the Trump Administration in 2019. Signed in 1997, it was originally designed to protect migrant children who came to the U.S. unaccompanied. But in 2015, it was amended to extend rights to children travelling with their families.

The FSA was named after one of the plaintiffs in a 1985 class action lawsuit, then-15-year-old, Jenny Lisette Flores. Her father had been killed during the Salvadoran Civil War so she fled to the U.S. to join her mother in California. The teenager was arrested by Immigration and Naturalization Service (INS) officers at the border, was handcuffed, and strip-searched. She was kept in detention because her mother did not agree to questioning by immigration officials. She feared that if she did, they would both be deported. Flores also had a cousin with legal status who was willing to take her in, but the INS refused to release her to someone who was not her legal guardian.

The immigration detention apparatus was not nearly the size it is today. After being arrested near San Ysidro, California, Flores was sent to a ramshackle motel in Pasadena, California with a chain-link fence – a makeshift detention center. There, unrelated children and adults of different sexes were made to share rooms and bathrooms. Alma Yanira Cruz, then 12-years-old, was also detained in that Pasadena motel. She reported regular strip searches and was not allowed visitors or given medical care. No supervised recreational activities or educational supports were provided to the children. They would spend their days sitting by the pool, which had been drained, or on the motel’s balconies until it was decided what would happen to them.

Attorneys Carlos Holguin and Peter Schey filed a class action lawsuit on behalf of Flores, Cruz, and two other girls who had fled El Salvador. The suit asked that officials screen for potential family members to release children to and that detention centers meet minimum child welfare standards. It spent 12 years in the courts, eventually going to the Supreme Court, then back down to a California district court. A settlement was finally reached in 1997 between the plaintiffs and the commissioner of the INS. By that time, the children had long become adults.

South Texas Family Residential Center

Under the FSA, unaccompanied children must be held in the ‘least restrictive’ settings possible and facilities must meet certain standards. They would ideally be released to a parent or guardian as soon as possible. If that is not possible, they must be transferred to licensed appropriate shelters.

In 2015, there was a spike in the number of families crossing the U.S.-Mexico border to seek asylum. The Obama administration subsequently attempted to increase the amount of time families spent in one of three family detention centers through a ‘No Release’ policy.

In a suit with the American Civil Liberties Union (ACLU), the Administration argued that the strict time constraints set by the FSA for releasing unaccompanied children should not apply to children detained with their families. However, a U.S. district court judge sided with the ACLU – families would also be released to a non-secure state-licensed facility within the 20-day limit set for unaccompanied children.

The Trump administration has latched onto the FSA because of this 2015 ruling. It has claimed it is a ‘loophole,’ and asserts that the Department of Homeland Security should be able to hold migrant minors and their families until their deportation proceedings have been concluded. What is more, in late August of this year, it announced plans to terminate the FSA. It would also end the practice of children’s bond hearings before an independent immigration judge. Instead, to be eligible for release, children would have to go before a ‘hearing officer’ from the Health and Human Services Department (an agency of the executive branch of government) – far from an independent and neutral party.

Children’s detention facilities in the U.S. already have a track record of unsafe conditions. Just weeks before this announcement, a federal appeals court in California found that holding centers near the border had failed to give children regular access to edible food, clean water, soap, and toothpaste for weeks. Children in overcrowded and cold cells have also been deprived of sleep. Family detention centers, though marginally better, are still known to have inadequate medical care. The negative mental effects of such facilities are yet to be fully documented. Terminating the FSA, which set a minimum standard for humane treatment of children, would allow this to continue or worsen.

To explain why the government is so intent on detaining children and families, one could look to past decades of U.S. detention policy. In the 1980s, waves of Cuban and Haitian immigrants arrived in the U.S. Some policymakers argued that the practice of allowing work authorization pending deportation proceedings was an incentive for immigrants. However, migration from Haiti and Cuba was largely spurred by political instability, not employment. Despite this, a federal task force recommended using detainment as a deterrent for immigration. The Reagan Administration began the practice of detaining all arriving immigrants who could not establish a ‘prima facie’ claim for admission to the country. This was done despite the then-Attorney General’s cautions – “[d]etention could create an appearance of ‘concentration camps’ filled largely by blacks,” he said.

The idea that detention can prevent immigrants from coming to the U.S. has carried on today, despite a lack of empirical evidence backing it. In 2015, when the Obama Administration attempted to implement their ‘No Release’ policy, they justified it by saying it would lessen the number of families attempting to enter the U.S. The one piece of evidence they produced was flimsy, a declaration by Tae Johnson, then-assistant director of ICE’s Custody Management Division. It relied primarily on news articles and secondhand information from ICE officers. The federal district court temporarily barred the policy, as they found this was not adequate to prove detainment prevented immigration.

Despite this, the Trump Administration has renewed the push to expand immigration detention, especially family detention. This is what is driving the push to terminate the FSA. A record 40% of migrants apprehended in 2018 were children or families. Therefore, to stop the influx of immigration, family detention is thought to be the new solution. Migrant families face dire conditions in their home countries, and continue to seek refuge in the U.S. regardless.

Alternatives to detention for families were explored in the past. In 2016, ICE began the Family Case Management Program (FCMP) in several cities across the U.S. It was offered to families at all stages of the immigration process and provided legal rights orientations, individual family service plans, and transportation assistance. Rather than being detained, families had random check-ins with ICE. The program was a success, with 99.3% of participants attending court hearings and 99.4% attending appointments with ICE. And while detention costs approximately $320 per person per day, the program cost $38 per family per day. This rebuts the common claim that immigrants released from custody fail to return for their court proceedings. However, the Family Case Management Program was terminated in 2017. Detention alternative programs have not been invested in since.

On September 27, 2019, federal judge Dolly Gee issued a permanent injunction blocking the Department of Justice from withdrawing from the Flores Settlement Agreement. The DOJ is expected to appeal the ruling. This was a hard-won victory for immigrant advocates, but taking into consideration the history of immigration detention, the road to a truly humane system is still long.

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How to cite this blog post (Harvard style) 

Gupta, S. (2019) The Flores Settlement Agreement and Detention as Deterrence. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/10/flores-settlement (Accessed [date])