When she was 16 years old, in 1985, Ana Maria Martinez Portillo was allegedly forced by immigration officials to strip and undergo an invasive body cavity search after meeting with her attorney in Laredo, Texas. Around the same time, 16-year-old Dominga Hernandez-Hernandez was kept in immigration custody and denied release despite meeting bail because her parents, who were in El Salvador, could not show up in person and face interrogation at the immigration facility in Pasadena, Calif. where she was being held.
Similarly, Jenny Lisette Flores, 15, and Alma Yanira Cruz-Aldama, 13, were kept in detention because their mothers would not agree to interrogation by immigration officials because they were afraid of being deported to war-torn El Salvador if they came in contact with immigration authorities.
Flores, Cruz-Aldama, Martinez Portillo and Hernandez, whose detention and treatment were all detailed in a 1985 class action complaint, were plaintiffs in the landmark case that was settled in what is now known as the Flores Settlement Agreement. The 1997 agreement required federal officials to meet minimum standards of treatment of minors in immigration detention, calling for “prompt” removal from custody (which in 2015, was interpreted by a federal judge to be a 20-day window) and broadening who the minor can be released to. It’s an agreement that the Trump Administration is now working to override.
Department of Homeland Security’s (DHS) Secretary Kevin McAleenan addressed the Administration’s intention during a Wednesday press conference. The new rule would allow indefinite detention of minors — beyond the 20-day Flores limit.
DHS and the Health and Human Services department is expected to publish the new rule in the Federal Register on Friday, at which point it will be on track to go into effect 60 days later, barring a court injunction. The new rule is expected to face legal challenges, particularly from the original attorneys who settled the Flores Agreement in 1997. Those attorneys will have seven days after the rule is published in the Federal Register to supplement a motion they had filed challenging the Administration’s proposed changes from September.
Supporters of the Flores Agreement say dismantling it will mean a reversal back to the time before the Flores case. “It’s a return to an era of indefinite detention of children, an era of no independent monitoring to make sure that children are treated with basic human dignity while in custody,” says Elora Mukherjee, professor of law at Columbia University, and director of the University’s Immigrants’ Rights Clinic.
Many also worry about the safety and health of children because of recent deaths of six minors either while in immigration custody or shortly after their release since September 2018.
“The detention of children in these facilities is never in the best interest of children,” says Dr. Marsha Griffin, a pediatrician and member of the American Academy of Pediatrics Immigrant Health Special Interest Group. “Given [DHS’s] history of poor medical care, and lack of screening — to keep children longer, we will see more deaths of children.”
McAleenan told reporters Wednesday that families will be housed at facilities that provide medical care. At the first such facility, constructed in Pennsylvania, a medical wing has been built where families receive medical care including immunizations required to attend public schools, he says.
Conditions for migrant children before and after Flores
Among the plaintiffs in Flores v. Reno were unaccompanied minors fleeing civil war in El Salvador. Beginning in 1979 and fueled in part by the government’s ruthless attempt to hunt down guerrilla rebel group Farabundo Martí National Liberation Front, also known as FMLN, about 75,000 Salvadorians were killed in the crossfire over the course of 13 years. About 25% of the Salvadorian population fled the country during the war, including 334,000 who fled to the U.S., between 1985 and 1990, according to the Migration Policy Institute.
In the 1985 lawsuit filed against the U.S. Attorney General and the Immigration and Naturalization Service (INS), the immigration enforcement agency at the time, California attorneys argued in their complaint that INS officials unlawfully held minors in detention. They did so, the lawyers said, by requiring that their parent or legal guardian appear before an INS agent for interrogation in order to be released. That policy did no go through proper protocol of being published in the Federal Register and allowing a public comment period before being implemented, according to the plaintiff’s lawyers.
Prior to the Flores Agreement there were no regulations or standards of care for children in detention, including no oversight over whether the INS was complying with child welfare laws, says Karla McKanders, professor of law at Vanderbilt Law School and director of the school’s Immigration Practice Clinic. In their filing, attorneys for the Flores plaintiffs said the girls in custody had no educational instruction, no medical examinations, no visitation with family or friends at one INS facility, no other educational reading materials and no adequate recreational activity. Some also had to share sleeping quarters with adult strangers, according to the 1985 complaint.
“We’re talking about licensing standards, we’re talking about immunizations, medical treatment, physical care, schooling, standards for making sure children are properly educated — there’s a lot,” McKanders tells TIME.
The case’s 1997 settlement agreement established that immigration officials must make “prompt” and continuous efforts to release migrant children into the custody of qualified sponsors, which expanded to include extended family. In 2015, a federal judge set a maximum 20-day limit for children who were detained alone or with their families in detention.
“The settlement agreement is clear,” Mukherjee says. “It prioritizes the release of children from federal immigration custody, it requires that they be held in licensed facilities and it recognizes that children are particularly vulnerable.”
Where Flores Agreement protections go from here
What makes the Flores Agreement unique, according to McKanders, is that Judge Dolly Gee of the Central District of California oversees its compliance.
The new regulations directly implicate the Flores Agreement, McKanders says, and so before it goes into place, Gee will have to rule on whether the changes violate the terms of the agreement. “Certainly that is going to be litigated for a while,” she says.
DHS says the procedures still fall in line with the overall goal of the Flores Agreement by treating children with “dignity, respect, and special concern for their particular vulnerability as minors,” which mirrors language from the case. DHS also says it will maintain family unity and house families in facilities that meet Immigration and Customs Enforcement standards, and will transfer unaccompanied children to Health and Human Services custody within 72 hours.
Mukherjee says that the new implementations will likely still be challenged legally by immigrant advocacy groups.
Griffin, a pediatrician who treats migrant children and families regularly in her practice in Brownsville, Texas, says the new rules “fly directly in the face of everything the American Academy of Pediatrics has been saying about the detention of children.”
“[Detention centers] are not places for children and the government should not be in the job of having custody of children for long terms because it is not good care,” she says.