Biden administration will seek partial end to special court oversight of child migrants
SAN DIEGO– The Biden administration will seek to partially end the court’s 27-year oversight of how the federal government cares for unaccompanied child migrants, shortly after creating its own list of safeguards against abuse, says a lawyer with the case involved.
The Justice Department told opposing attorneys that it will ask a federal judge Friday to terminate the so-called Flores agreement with the U.S. Department of Health and Human Services, which requires custody of unaccompanied children within 72 hours of arrest by the Border Patrol, the Justice Department said. Leecia Welch, deputy director of dispute resolution at Children’s Rights, which is representing children in the case.
The historic settlement — named after a child immigrant from El Salvador, Jenny Flores — would remain in place at the Border Patrol and its parent agency, the Department of Homeland Security, causing what Welch called a “piecemeal” dismantling. Advocates for unaccompanied children will oppose the measure, which must still be approved by U.S. District Judge Dolly Gee in Los Angeles.
The Justice Department declined to comment. Health and Human Services had no immediate comment.
Flores is a cornerstone of the policy, which forces children to be released quickly to relatives in the U.S. and sets standards for licensed shelters, including for food, drinking water, adult supervision, emergency medical services, toilets, sinks, temperature checks and ventilation. It stemmed from widespread allegations of abuse in the 1980s.
The move has the potential to strain President Joe Biden’s already rocky relationship with immigration advocates, as the Democratic leader faces an unprecedented surge in border crossings in an election year. In each of the past two budget years, there have been more than 2 million border arrests, including nearly 300,000 unaccompanied children.
Biden has moved to tougher enforcement as Republicans attack his handling of the border. His government is planning a new rule aimed at denying more asylum applications during initial screenings, a possible prelude to moves for broader border control.
The bid to partially unseat Flores would come less than three weeks after Health and Human Services published a rule establishing safeguards for child custody. Secretary Xavier Becerra said the rule, which will take effect July 1, “will set clear standards for the care and treatment of unaccompanied (migrant) children.”
Welch said ending special supervision could prevent child advocates from inspecting health and human services shelters and interviewing children in the department’s care.
“My only guess as to why they would want to do this now is because Flores’ counsel is a thorn in their side,” Welch said. “We can go to (their) facilities whenever we want, we can talk to the young people there, and if they don’t follow the rules, we can file motions to enforce, and they don’t like that.”
Judicial oversight of the Department of Homeland Security would leave crucial parts of Flores intact, including a 20-day limit on Border Patrol detentions of unaccompanied children and parents traveling with a child. Border Patrol facilities have suffered from extreme overcrowding in 2021, and the Biden administration has steadfastly resisted calls to detain children and families for longer than 72 hours.
When Flores took effect in 1997, the care of child migrants fell entirely under the domain of the U.S. Immigration and Naturalization Service, which was disbanded six years later with the creation of Homeland Security. Since 2003, Health and Human Services has taken custody of unaccompanied children within 72 hours of arrest. The split became a nightmare in 2018 when the Trump administration separated thousands of children from their parents at the border and computers for the two departments were not properly connected to quickly reunite them.
A surge of unaccompanied children at the border in 2014 led to heightened federal scrutiny, and the surges continue today. Last year, there were more than 130,000 arrests of unaccompanied children at the Mexican border. Health and Human Services releases the vast majority of unaccompanied children to immediate family members while immigration judges assess their futures.
In 2020, an appeals court granted the Trump administration’s bid to end Flores for Health and Human Services, but blocked the effort to eliminate oversight of Homeland Security. The change never came into effect.
“It was quiet for a while and then we started hearing rumblings that they were going to move forward with their own regulations that would be bigger and better and consistent with Flores,” Welch said.
Health and Human Services released a proposal in October that drew more than 70,000 public comments. It published a final version last month.
The department said last month that the rule “implements and goes beyond” Flores. Among other things, it establishes an independent ombudsman office, sets minimum standards for temporary shelters, and formalizes advances in screening protocols for releasing children to families and sponsors and for legal services.
Welch said the new rule has “a lot of positives” but does not cover unlicensed shelters contracted by Health and Human Services, which she considers the most critical part of Flores. In 2021, Texas Governor Greg Abbott revoked the state licenses of facilities that care for migrant children.
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Associated Press writers Alanna Durkin Richer and Amanda Seitz in Washington contributed.