December 6th , 2023



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In 2018, the Trump administration issued a 200-page proposed regulation to govern the detention of children and families held by all immigration authorities. These regulations were sweeping, applying new restrictions and seeking to legalize the punitive practices the Trump administration employed against immigrant detainees. They are in direct and flagrant violation of standing court orders. Is the Biden Administration helping solve this crisis?


To understand just how onerous this package was, some background is useful.


In 1985, fifteen-year-old Jenny Flores was held by immigration in a dilapidated East Los Angeles hotel along with adults. This detention center was inappropriate for housing anyone least of all children. Jenny’s aunt wanted to take her, but immigration rules allowed release to parents only. Fortunately, a human rights lawyer at the Center for Human Rights and Constitutional Law stood up for Jenny and all the other children in detention and sued. The government fought the case tooth and nail for 12 years. It was all out war on children.


Finally in 1997, the government gave up and entered into an agreement that set the nationwide standards for the detention, release, and treatment of children in immigration custody. The agreement, called the Flores Settlement”, is written in “clear and unambiguous language,” said Federal Judge Dolly Gee, before whom a motion to enforce the Flores Settlement is still active.


The Flores Settlement says that within 120 days, the Government will issue regulations consistent with the Settlement. In other words, they said they would make it the law. That was 24 years ago. Since then, the Government through successive administrations has done nothing other than consistently violate its terms.


In July of 2018, the Trump administration went to court and asked Judge Gee to change the terms of the Flores Agreement. Specifically they wanted to change the rules so that they could detain people indefinitely. Judge Gee said no. She found their request improper. She said their interpretation of the Flores agreement was “tortured” and their filing “cynical.”


Afterward, Trump's DHS issued new regulations to truly “torture” Flores and show the same disdain for immigrants they had through the mass mill of federal prosecutions for illegal entry, accusing parents of falsely claiming their children as their own, and stripping passports from US citizens primarily of Mexican heritage.


The government was disingenuous at best in explaining is justification for the rule. The very same folks who pulled babies from the arms of their mothers kept claiming keeping families together is their top priority. Yes, families will be kept together, held in mandatory detention until their immigration cases are decided. So will the unaccompanied children. Things have not improved much now in 2022.


What goes on in these places? Attorneys have been inside these immigrant detention centers and interviewed children who have been detained by Customs and Border Protection (CBP), ICE and ORR. What they say about the conditions in which they live is heartbreaking.


About CBP, the children say there is inadequate food and water. The temperatures are freezing and there’s no medical care. Judge Dolly Gee heard their voices, agreed with them and appointed a Special Master to investigate in 2018.


The conduct the government professed to protect through these rules was in direct violation of the every promise made when they agreed to the Flores Settlement. They consistently and routinely violate the human rights of the children. These violations have been going on for more than 20 years. Now the Government has decided to issue regulations that will set Flores aside so they can legally do what they have been doing illegally.


Who will be charged with keeping the children? The same companies the Government has been making rich by providing inadequate services at a high cost and huge profit with taxpayers footing the bill. They are granted contracts by the US Government.


A new scheme would eliminate the requirement of state licensing in most cases relying instead on private companies hired by the same agencies it is auditing to certify that the Government meets its own standards while profiting handsomely in return.


Notably absent from the Proposed Regulations are calculations of what these proposals would cost. For example - “DHS is unable to provide a quantified estimate of any increased FRC (family residential center) cost or to make an estimate of the cost of any increased detention.” It costs more to pay a contractor than to do it yourself. And you can always blame them if things fall apart.


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Blair Phillips

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