By ELLIOT SPAGAT (Associated Press)
SAN DIEGO (AP) — After making its own list of protections against mistreatment, the Biden administration will seek to partially end the 27-year-old court oversight of how the government cares for child migrants traveling alone, according to an attorney involved in the case.
The Justice Department has informed opposing attorneys that it will request a federal judge on Friday to terminate the Flores agreement at the U.S. Health and Human Services Department, which takes custody of unaccompanied children within 72 hours of arrest by the Border Patrol, said Leecia Welch, deputy litigation director at Children’s Rights, which represents children in the case.
The landmark settlement — named for a child immigrant from El Salvador, Jenny Flores — would remain in effect at the Border Patrol and its parent agency, the Department of Homeland Security, creating what Welch called a “piecemeal” dismantling. Attorneys for unaccompanied children will oppose the move, which would be subject to approval 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 policy cornerstone, requiring children to be quickly released to family in the U.S. and setting standards at licensed shelters, such as for food, drinking water, adult supervision, emergency medical services, toilets, sinks, temperature control, and ventilation. It grew from widespread allegations of mistreatment in the 1980s.
The move could strain President Joe Biden’s already difficult relationship with immigration advocates as he deals with a significant increase in border crossings during an election year. Border arrests have exceeded 2 million in each of the last two budget years, including nearly 300,000 unaccompanied children.
Biden has leaned towards stricter enforcement as Republicans criticize his handling of the border. His administration plans another rule aimed at rejecting more asylum claims during initial screenings, which could lead to further actions for a broader border crackdown.
The attempt to partially undo Flores would come less than three weeks after Health and Human Services issued a rule rules to establish protections for child custody. Secretary Xavier Becerra said the rule, effective July 1, will set “clear standards for the care and treatment of unaccompanied (migrant) children.”
According to Welch, ending special oversight can prevent attorneys for children from inspecting Health and Human Services shelters and interviewing children in the department’s care.
“My only guess for why they would want to do this now is because Flores counsel is a thorn in their side,” Welch said. “We can go into (their) facilities whenever we want, we can talk to the young people there, and when they’re out of compliance we can file motions to enforce, and they don’t like that.”
Maintaining court oversight for the Homeland Security Department would keep important parts of Flores intact, including a 20-day limit on the Border Patrol holding unaccompanied children and parents traveling with a child. Border Patrol holding facilities have faced a lot of people in one place as recently as 2021, and the Biden administration has firmly resisted requests to hold children and families for more than 72 hours.
When Flores took effect in 1997, taking care of child migrants was the responsibility of the U.S. Immigration and Naturalization Service. This organization was disbanded six years later when Homeland Security was created. Since 2003, Health and Human Services has taken charge of unaccompanied children within 72 hours of arrest. The separation became a problem in 2018 during the Trump administration separated thousands of children from their parents at the border, and the computers for the two departments weren't properly connected to quickly reunite them.
A large number of children traveling alone arrived at the border in 2014, which led to increased scrutiny of the federal government. High numbers of children traveling alone at the Mexican border exceeded 130,000 last year. Health and Human Services releases most unaccompanied children to close relatives while immigration judges consider their futures.
In 2020, the Trump administration's request was approved by an appeals court the Trump administration’s bid to end Flores for Health and Human Services but blocked its attempt to lift oversight at Homeland Security. The change never took effect.
“It was kind of quiet for a while and then we started hearing rumblings that they were going to forge ahead with their own set of regulations that were going to be bigger and better and consistent with Flores,” Welch said.
Health and Human Services put forward a plan in October that resulted in more than 70,000 public comments. It released a final version last month.
The department said last month that the rule “implements and goes beyond” Flores. Among other things, it creates an independent ombudsman’s office, establishes minimum standards at temporary overflow 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 doesn’t address unlicensed shelters contracted by Health and Human Services, which she considers the most critical piece of Flores. In 2021, Texas Gov. Greg Abbott revoked 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.
