Federal judge deals significant blow to Flores protections, advocates raise major concerns

Order will allow federal government to undo significant portions of key agreement that protects children in immigration custody, replace them with inadequate regulations

LOS ANGELES — A federal court on Friday granted the government’s request to terminate significant portions of the Flores Settlement Agreement, dealing a crushing blow to vital protections for children in federal immigration custody. The decision was strongly opposed by lawyers with the National Center for Youth Law, Center for Human Rights and Constitutional Law, and Children’s Rights, all of whom remain committed to ensuring young people’s rights are protected and will continue to represent youth in federal immigration custody.

Friday’s order from Judge Dolly Gee allows the government to modify the Flores Settlement and terminate its application to youth detained by the Department of Health and Human Services (HHS). The Settlement’s protections will be largely replaced by new government regulations. Unfortunately, these new regulations don’t require independent oversight of detention of unaccompanied migrant children, and therefore leave these young people vulnerable. Further, the decision eliminates state licensing requirements for detention facilities in states that refuse to provide such licenses.

Mishan Wroe, an attorney with the National Center for Youth Law who argued against the government’s motion to terminate before Judge Gee, stressed the importance of maintaining key elements of the Flores Settlement — which for nearly three decades has guaranteed independent oversight of the government’s treatment of children in immigration custody.

“This is a profoundly disappointing outcome that will not only leave immigrant youth exposed to harm but will make it more difficult to enforce children’s rights when those harms inevitably occur,” Wroe said. “All children, no matter where they’re from, deserve protections that support their health and well-being. We are grateful the Court took seriously the arguments we presented at the hearing and retained some independent oversight through Flores counsel monitoring for the time being.”

Leecia Welch, Deputy Legal Director at Children’s Rights, said, “Over the past eight years, I have been privileged to meet with hundreds of incredible children in immigration custody – many in conditions of confinement that no child should ever have to endure. If the American people could see what my co-counsel and I have seen – they would understand why children in government facilities need independent monitors looking out for them. Our team will hold the government accountable to their promises to keep children in unlicensed facilities safe – and if they fail to provide adequate safeguards as ordered by Judge Gee – we will be back in court once again.”  

Despite the modifications allowed by Friday’s order, Flores counsel will continue to be able to monitor all Office of Refugee Resettlement (ORR) facilities and interview children in ORR custody. The Flores protections also remain in place for children placed in secure, heightened supervision, and out-of-network facilities. Children in these facilities generally have heightened mental and/or physical health needs and are therefore among the most vulnerable children in custody.

The Flores Settlement serves as the only national legally mandated mechanism to ensure that detained immigrant children are treated appropriately while in custody and are released from custody promptly. The Flores co-counsel team has filed several successful motions to enforce the Flores Settlement, highlighting the enduring need for this critical oversight and will continue to enforce the Settlement as to children detained by the Department of Homeland Security in Customs and Border Protection facilities.

Sarah Kahn, Interim Director of CHRCL, said, “It is disheartening to see HHS fighting to replace the protections provided by Flores with regulations that reduce mechanisms for oversight and are vulnerable to future changes influenced by political pressure. We are glad the Court recognized the need for some continued independent oversight. Until our country stops imprisoning children, we cannot jeopardize the vital protections articulated in the Settlement.”

Media Contacts

Willis Jacobson, National Center for Youth Law: wjacobson@youthlaw.org

Camilla Jenkins, Children’s Rights: cjenkins@childrensrights.org

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The National Center for Youth Law centers youth through research, community collaboration, impact litigation, and policy advocacy that fundamentally transforms our nation’s approach to education, health, immigration, foster care, and youth justice. Attorneys and advocates with the National Center for Youth Law have direct access to children and families in immigration custody, due to the organization’s role as Flores counsel. This has allowed NCYL attorneys to witness, up-close, the harm the current immigration system continues to inflict on children and their families. For more information, visit www.youthlaw.org.

Children’s Rights is a national advocacy organization dedicated to improving the lives of children living in or impacted by America’s child welfare, juvenile legal, immigration, education, and healthcare systems. We use civil rights impact litigation, advocacy and policy expertise, and public education to hold governments accountable for keeping kids safe and healthy. Our work centers on creating lasting systemic change that will advance the rights of children for generations. For more information, please visit childrensrights.org.

The Center for Human Rights and Constitutional Law protects the civil and human rights of community members through impact litigation and systemic advocacy and provides technical support and training to direct legal service providers. For more information, please visit centerforhumanrights.org.