Today the Trump administration issued regulations aimed at terminating the historic Flores settlement the Center for Human Rights and Constitutional Law (CHRCL) reached with the federal government in 1997 after twelve years of litigation. We continue to serve as lead counsel for the Flores class of all migrant children detained by the government.
For twenty-one years the Flores settlement has set the national standards for the detention of thousands of detained accompanied and unaccompanied minors.
The settlement has protected refugee children in two important ways.
* First, it provides for the humane treatment of children by requiring that as expeditiously as possible they be placed in facilities licensed by a state agency for the care of dependent children.
* Second, the settlement requires that unless they are a flight risk or danger to themselves or others, migrant minors must be reunited with family members in the United States as promptly as reasonably possible. However, the settlement does not require release within 20 days as the Trump administration repeatedly claims.
Since adopting his "zero tolerance" policy of separating apprehended children of all ages from their parents and prosecuting the parents in April 2018, President Trump has politicized the detention of children, repeatedly calling for the termination of the Flores settlement and the detention and prompt deportation of children regardless of persecution or domestic abuse they may face in their home countries.
In his Executive Order signed on June 20, 2018, ending his ill-conceived separation policy, Trump ordered then Attorney General Jeff Sessions to immediately file an emergency motion in the court overseeing compliance with the settlement requesting that the court terminate key provisions of the agreement. As class counsel we opposed that motion and in July 2018 U.S. District Judge Dolly Gee denied the Government's request. The Trump administration appealed Judge Gee's decision, but later withdrew its appeal.
In January 2019, President Trump wrote to all members of Congress with two demands to end the Government shutdown: He demanded several billion dollars to build his border wall. He also demanded legislation to terminate the rights children have under the Flores settlement. That effort failed both in terms of funding for a wall as well as legislation terminating migrant minors' minimal rights in the U.S.
On April 5, 2019, while meeting with border patrol agents in Calexico, California, President Trump again railed against the settlement: "The Flores decision is a disaster. I have to tell you, Judge Flores, whoever you may be, that decision was a disaster for our country," The "Flores" in the case's title is not the judge, but a teenage girl named Jenny Lisette Flores, one of the original four plaintiffs when we filed he case in 1985.
The White House is now trying to reverse the rights migrant children in detention possess by issuing regulations to override the Flores settlement.
Peter Schey statement: "This effort puts on full display President Trump's callous indifference to the health and safety, indeed even the lives, of detained minor children. Over the past year several children died while in the custody of the Trump Administration, thousands have been detained in inhumanely overcrowded cells and cages, often without sleeping mats or blankets, and many have needed but not received medical care because of serious illnesses caused by unsanitary and overcrowded detention conditions. This is how President Trump treats immigrant children detained by his administration. The Trump administration's plan is certainly to detain migrant children as long as it wishes without having to adhere to well-established standards for the conditions of confinement of minors, delay the release of minors to their families living in the U.S, ignore children's potential eligibility for legal status under current laws, and deport as many minors as possible without regard for the abuse or persecution they may face in their home countries."
There are now several motions pending before Judge Gee challenging these detention conditions, as well as the use of an unlicensed military-style camp as an "influx" center to detain minors for weeks and months on end, and the administration of psychotropic drugs in certain secure facilities without seeking parental consent or court orders. The administration hopes to wipe out the jurisdiction of the court ton address these pending court challenges by terminating the settlement the court is being asked to enforce.
The Administration's final regulations will most likely never be implemented because under the terms of the settlement the Government agreed to in 1997, the settlement only terminates when the Government issues regulations that are consistent with and implement the terms of the settlement. The White House's regulations do not "implement" the settlement the President calls a "disaster." Instead they abrogate important rights children have under the settlement. Because the regulations will not terminate the settlement, their implementation will be blocked because their implementation would involve a material breach of the settlement.
The Trump administration most likely knows that its regulations will be blocked by the courts. These regulations are perhaps being issued more as part of President Trumps re-election campaign than as a serious effort to terminate the settlement. In the coming months President Trump will intensify his attacks on the "caravans," and rail about the border being overrun, and a border patrol overwhelmed and in chaos, and the blame will increasingly focus on immigrant families and unaccompanied minors. President Trump will rail about how he tried to stop the families and children, who he'll call gang members, traffickers, and criminals, and his crowds will chant send them back. And he'll say, we tried, we even put out regulations, but those California judges, they're all a disaster, they've temporarily blocked our efforts to protect you, we're the laughing stock of the world, this Flores thing is one giant loophole, we need a wall, we need to detain these people and send them back. That will be the road this President will take to win re-election.
The regulations should be opposed by faith-based groups, community and human rights groups, elected officials at all levels of government, and the medical and mental health communities. It will hopefully be blocked by the court, which will continue its important role overseeing and enforcing compliance with various terms of the settlement the Trump administration is violating.
Lawyers, paralegals, interpreters and child welfare experts wanting to help us monitor compliance with the Flores settlement at border patrol, ICE, and ORR detention facilities may register at www.reunify.org