By T. Jayani, JadeTimes News
A federal judge has partially ended a decades old agreement governing the conditions for migrant children in federal custody, according to a court order effective Monday. US District Judge Dolly M. Gee’s ruling partially terminates the 1997 Flores Settlement agreement which established national standards for the humane treatment of children in US custody at the Department of Health and Human Services (HHS).
However, the agreement remains fully effective for US Customs and Border Protection (CBP) and US Immigration Customs Enforcement (ICE). The court concurred with the Biden administration, with certain exceptions, that a new HHS regulation, effective Monday, provides adequate oversight and multiple safeguards to address the lack of state licensing in places like Texas and Florida.
Unaccompanied migrant children are processed through immigration while in CBP custody before being transferred to HHS, where they stay until reunited with a sponsor, such as a parent or relative in the US. “We are deeply disappointed by the Court’s ruling and concerned it places thousands of children in harm’s way,” said Leecia Welch, counsel for the plaintiffs and deputy legal director at Children’s Rights.
The Biden administration argued in May that the new HHS regulation, known as the “Unaccompanied Children Program Foundational Rule,” offers additional protections and responds to unforeseen changes.
“The Rule ‘returns both parties as nearly as possible to where they would have been absent the changed circumstances’ because it still requires unlicensed facilities to meet their state’s licensing requirements,” Judge Gee stated in the ruling.
Attorneys for the plaintiffs contended that the federal regulation fell short in providing protections for some migrant children, like those in medium secure facilities, and did not adequately address the lack of state licensing for unaccompanied migrant shelters in Texas and Florida, according to the court order.
“The regulations were a huge step forward it was the failure to account for the lack of state licensing that created a serious concern for us. Plus, the fact that the regulations fail to protect some of the most vulnerable children in ORR custody those in more restrictive placements who often have more acute trauma and mental health needs,” Welch explained. ORR refers to the Office of Refugee Resettlement, an agency within HHS.
The Biden administration argued that the new federal regulations require shelters housing unaccompanied migrant children “to be state licensed or, if state licensing is not available to adhere to the state’s licensing requirements,” according to court documents.
We reached out to HHS for comment. In April, HHS Secretary Xavier Becerra said the new federal regulation “underscores HHS’ unwavering commitment to the health, safety, and welfare of unaccompanied children in our care.”
“By enhancing the legal framework governing the UC (unaccompanied children) Program, we set clear standards for the care and treatment of unaccompanied children in ORR’s custody and the support they receive as they transition into new communities,” Becerra said in a news release at the time.
Judge Gee’s ruling allows attorneys representing the plaintiffs, like Welch, to have access to HHS facilities and information about the children in custody there, enabling continued oversight of migrant children in HHS custody.
“Our team will hold the government accountable to their promises to keep children in unlicensed facilities safe and if they fail to provide adequate alternative safeguards to state licensing in Texas and Florida we will not hesitate to return to court,” Welch said. The Trump administration attempted but failed to terminate the Flores Settlement in 2019, according to court documents.
Under Judge Gee’s ruling, the court retains the power to modify the order if circumstances change, including if the new federal regulation is rescinded or modified to be inconsistent with the Flores Settlement. This gives some attorneys confidence that the order has the necessary guardrails to protect migrant children, regardless of the administration in power.
“The fact that the order retains jurisdiction over both HHS and DHS and maintains our ability to hear directly from children gives me hope that no matter what happens in November, the fundamental protections afforded to immigrant children under Flores for the last 27 years will continue,” Welch said.
However, some immigration advocates and attorneys remain concerned that the ruling could lead to migrant children in government detention facing dangerous conditions.
“Having spent almost two decades advocating for children in government custody, I have repeatedly witnessed children in dangerous conditions. The premature termination of Flores creates a situation in which unaccompanied children in immigration custody may end up in dangerous conditions that go unnoticed and unaddressed for years to come,” said Neha Desai, senior director of immigration at the National Center for Youth Law.
