President Biden faces a major obstacle to his immigration agenda in the form of the Flores settlement agreement, a set of court orders setting rules for detaining and releasing migrant children at the border.
The agreement effectively prevents federal law enforcement from detaining migrant families for more than a brief period, forcing the government to choose between aggressively turning away families at the border or releasing them into the country.
The agreement has bedeviled the past five administrations as migration to the southern border ebbs and flows. Now, it threatens to present Biden with a crisis.
While border agents are expelling nearly all illegal immigrants back to Mexico, one high-traffic section of the border in Texas is being forced to detain and release into the country all families as the result of Mexico refusing to take back families. And with detention facilities unable to hold the rising number of families due to capacity and timing restraints outlined in the agreement, Biden could lose control of the border even before he has a chance to pursue immigration reform legislation.
The history of Flores
Flores dates back to 1985, when the Center for Human Rights and Constitutional Law, aided by the American Civil Liberties Union of Southern California, sued the government in a class-action lawsuit named after 15-year-old Jenny Lisette Flores, a girl from El Salvador taken into custody for illegally crossing the southern border. Flores fled her home country alone to join her aunt in the United States.
Immigration and Naturalization Service officers took her into custody and detained her in the same room as adult men and women. Policy at the time mandated detainees, including children, be strip-searched daily. Flores was denied release to her aunt.
A suit was filed against Reagan Attorney General Edwin Meese on behalf of Flores and all unaccompanied children in the western region of the country. The lawsuit alleged that Flores was not housed separately from unrelated adults, did not receive adequate hygiene care, and was wrongly denied release to a family member in the U.S.
The case, Flores v. Meese, continued through the courts for years under multiple administrations until 1993, when the Supreme Court ruled in a follow-up case that unaccompanied children do not have a right to be released to extended family members and were not inherently guaranteed a hearing before an immigration judge. In 1997, the court approved the Flores settlement agreement, which mandated protocols for how the federal agencies handle unaccompanied children.
Prior to this, border and immigration agencies did not have standards for detaining children. Under Flores, children would receive food, water, medical care, toilets and sinks, appropriate temperatures would be maintained inside facilities, adequate adult supervision, and the ability to contact family.
Flores was intended as a temporary measure, according to the Congressional Research Service, and was only to remain in effect until the government put forward regulations that the court would approve.
Protocols for the care of immigrant children changed during the George W. Bush administration after the Department of Homeland Security was created in the aftermath of the Sept. 11 terrorist attacks. INS was dismantled and broken into other agencies, including the Border Patrol and U.S. Immigration and Customs Enforcement. Children would be transferred to the Department of Health and Human Services Office of Refugee Resettlement, which was better suited than Border Patrol to house children for weeks to months at a time until they could be released to family.
In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act changed the law so that unaccompanied children from Canada and Mexico who arrived at the U.S. border would be immediately returned home, but children from all other countries would be taken into custody as potential human trafficking victims.
The Obama era
In 2014, an unprecedented number of unaccompanied children and families from El Salvador, Guatemala, and Honduras arrived at the border. While the single children would be transferred to HHS, DHS opted to have ICE build family detention centers in Pennsylvania and Texas to house 3,400 people.
Central District of California District Judge Dolly Gee, an Obama appointee, ruled in 2015 in Flores v. Johnson that children, whether unaccompanied or with family members, could not be held indefinitely and that they all had to be treated according to the terms of the 1997 settlement agreement.
At the request of the government, which wanted the ability to hold families temporarily to allow for the resolution of claims for asylum or removal, Gee allowed ICE to detain families for up to 20 days.
Trump ‘zero tolerance’ policy
The Trump administration in early 2018 rolled out a “zero tolerance” policy nationwide that called for all adults who entered the country illegally to be referred for prosecution, including those who were with children.
The policy entails that migrant families would be split up, given the reality that the Flores agreement prevented law enforcement from holding families with children long enough for their cases to be resolved.
The Trump administration asked Gee for permission to detain children with parents while they were prosecuted for unlawfully entering the U.S. but was denied. The administration proceeded anyways, and as a result, the adults were jailed during prosecution and the children went to HHS, as was outlined by the Flores settlement agreement.
After major backlash, former President Donald Trump tried to find a way to pursue the zero tolerance policy without splitting up families. He asked then-Attorney General Jeff Sessions to change the agreement so that families could be held in custody more than 20 days since immigration judges were not able to hear claims in that time period. DHS and HHS proposed regulations that would “ultimately lead to the termination” of Flores — the first submitted by the government since 2001. Gee again denied the government’s request, saying it was for Congress to codify detention policies for immigrant children and families.
Eventually, Trump backed off the zero tolerance approach.
The problem facing Biden
Flores remains in full effect during the Biden administration. Most families encountered at the border are released from federal custody into the U.S. within 20 days.
Border Patrol agents responsible for arresting illegal immigrants who trespass into the U.S. have turned away nearly all migrants since March in an effort not to detain people at law enforcement facilities while the coronavirus pandemic continues. But now, agents working in the southern border’s busiest region have been blocked by Mexico from returning to Mexico families with children 12 years old and younger. Overwhelmed, law enforcement has begun to release families out of the backdoors of holding stations, according to Mark Morgan, the former acting commissioner of U.S. Customs and Border Protection.
With illegal border crossings expected to rise, Biden has little time to steer sweeping reforms through Congress. Without new laws, he could be forced into a choice between either maintaining the Trump administration’s enforcement measures and disappointing liberal immigration activists or seeing a rise in illegal immigration of the kind the GOP has predicted.