For 27 years, federal courts have held special oversight over custody conditions for child migrants. The Biden administration wants a judge to partially lift those powers.
U.S. District Judge Dolly Gee will consider the request at a hearing in Los Angeles on Friday, barely a week before new safeguards take effect that the administration says meet, and in some ways exceed, standards set forth in a landmark settlement named for Jenny Flores, a child immigrant from El Salvador.
The administration wants 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. It would remain in effect at the Border Patrol and its parent agency, the Department of Homeland Security.
Flores is a policy cornerstone, forcing the U.S. to quickly release children in custody to family in the country and setting standards at licensed shelters, including for food, drinking water, adult supervision, emergency medical services, toilets, sinks, temperature control and ventilation. It grew out of widespread allegations of mistreatment in the 1980s.
Court oversight gives advocates representing child migrants broad authority to visit custody facilities and conduct interviews with staff and other migrants. They may register complaints with Gee, who can order changes.
Lawyers for child migrants strenuously oppose the move to roll back court supervision, arguing in part that the federal government has failed to develop a regulatory framework in states that revoked licenses of facilities caring for child migrants or may do so in the future.
Texas and Florida — led by Republican governors who are critical of unprecedented migration flows — revoked licenses in 2021, leaving what advocates describe as a void in oversight that endangers child safety.
The Justice Department argues new safeguards that take effect July 1 render Flores unnecessary at Health and Human Services facilities. It says HHS will require shelters to obey state licensing standards, even if they are unlicensed, and will increase site visits in those states to make sure they comply.
Keeping court oversight for the Homeland Security Department would keep critical parts of Flores intact, including a 20-day limit on holding unaccompanied children and parents traveling with a child. Border Patrol holding facilities have experienced extreme overcrowding as recently as 2021.
When Flores took effect in 1997, caring for child migrants was within the full domain of the U.S. Immigration and Naturalization Service, which 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 weren’t properly linked to quickly reunite them.
In 2014, a surge of unaccompanied children at the border brought heightened scrutiny of the federal government. Since then, arrests of children traveling alone at the Mexican border have increased, and last year topped 130,000. Health and Human Services releases the vast majority of unaccompanied children to close relatives while immigration judges weigh their futures.
