In the summer of 2014 alone, nearly 70,000 children and families were apprehended at the southern border seeking asylum. That summer presaged a marked shift in migration patterns brought on by several factors, including fewer job opportunities and increased violence in Northern Triangle countries (NTC). The figure below demonstrates how children and families have since overtaken the steady stream of single adults (primarily males) arriving from Mexico that accounted for the vast majority of apprehensions for years.
Instead of addressing the root causes of changing migration trends and adapting our system to process children and families efficiently and humanely, we used the same deterrence policies used to block migration for years. Rhetoric of an “overwhelmed system” led administrations to subject families to inhumane detention conditions, separation, and expedited removals that resulted in life-threatening situations.
Detailed below, the Flores Settlement Agreement (“Flores”) comprises the backbone of standards used to protect children and families from prolonged detention and poor conditions. The Bush II, Obama, and Trump administrations focused on building detention capacity to keep families and children locked up for extended periods. They attempted to circumvent minors’ protections by prolonging the detention of children who arrived with parents or guardians instead of processing the entire family out of detention pursuant to Flores.
These policies repeatedly violated the legal protections that require the government to act in the child’s best interest. Flores protections for children and families should be the standard for how we process immigrants, especially during times of crisis when many immigrants arrive at the border. We should focus on quickly processing them and limiting the number of immigrants held in detention, not building up detention capacity.
What is the Flores Settlement Agreement?
The standards that govern the detainment of immigrant children are outlined in the Flores Settlement Agreement (Flores), which arose from a lawsuit filed in 1985 by two immigrant rights organizations on behalf of a class of children detained by the Immigration and Naturalization Service (INS) (whose duties were later split among three new agencies: ICE, CBP, and USCIS).
The settlement agreement requires the government to act in the best interest of the minors held in immigration detention and protect them from abuse or neglect while they are in government custody. The agreement requires children to be released to the care of a sponsor or a licensed program “without unnecessary delay.” If a child cannot be released, they must be held in the least restrictive environment possible, kept away from unrelated adults, and provided access to medical care, exercise, and adequate education.
In contrast, the government can detain adult asylum seekers for extended periods during their immigration process, including before the initial credible fear interview and while they await a merits hearing before an immigration judge. They can be released on bond to live with family or friends in the United States after the initial stages to await their final hearing, which can be months or years away. Children, however, must be granted a “general policy favoring release” from detention.
While courts have regularly held that the standards set in Flores apply to accompanied children (discussed in later sections), the settlement is ambiguous about the criteria for release of the adults accompanying a child.
How past administrations have undermined child protections
Bush Administration (2001-2009)
President George W. Bush changed many aspects of the immigration system in the wake of 9/11. During his administration, INS policy required a parent to be involved in a child’s release from immigrant detention. If a parent was not a legal U.S. resident, the parent had to enter immigration court proceedings before INS would release the child. A 2001 inspector general report found that INS was not fully complying with Flores’ standards requiring children’s detention in the least restrictive environment.
The Bush administration also created a policy that prolonged the detention of immigrant families, denying Flores protections to any children accompanied by parents or guardians. To accommodate the large numbers of immigrant families, they established the T. Don Hutto Residential Center in 2006. Within a year of its opening, the detention center faced criticism for not meeting Flores’s standard and faced a lawsuit from the American Civil Liberties Union (ACLU) for poor detention conditions. The administration settled the lawsuit by promising to improve detention conditions but continued to deny Flores protections to children traveling with their parents.
Obama Administration (2009-2017)
The Obama administration initially took promising steps towards improved treatment of immigrant minors by closing the Hutto center in 2009. During this period, there was only one detention facility for immigrant families, and the majority of families were released to await trial.
The administration reversed course in 2014 amidst a surge of Central American minors and families. The administration expanded detention to deter immigrants from making the journey to the border. This expansion included holding hundreds of families in a makeshift facility in New Mexico, infamously known as a “tent city;” constructing new family detention facilities; and expanding the use of expedited deportation for families. In 2015, a federal judge ruled that “deterring future immigration” did not justify keeping a family in detention. Another lawsuit found that Flores standards apply to all minors apprehended at the border, including those with their families.
Trump Administration (2017-2021)
The Trump administration widely expanded the use of detention for children and families. The National Immigrant Justice Center reported that since 2017, ICE (Immigrations and Customs Enforcement) has opened over 40 new detention centers, yielding a total of 220 detention facilities across the United States. Private operators run most. The Department of Health and Human Services (HHS) currently operates a network of more than 100 shelters for immigrant children and families in 17 states.
In response to the growing number of unaccompanied children since 2017, HHS increased the number of shelter beds from approximately 6,500 to almost 12,000 beds. The administration also re-established temporary shelters for unaccompanied minors, which quickly became infamous for locking children in cages.
The administration stopped short of admitting deterrence was their motivation for prolonged detention. Instead, officials relied heavily on language that invokes images of an “overwhelmed” border. Rather than criminalize the children themselves, the administration implemented “zero tolerance,” which required criminal prosecution of adults apprehended at the border for illegal entry. This led to widespread family separations.
Systemic Issues With Detaining Immigrant Children
The past three administrations have undermined basic protections for children and families seeking asylum and demonized parents who come to the United States seeking opportunity and safety with their families. The government has emphasized a distinction between accompanied and unaccompanied minors ― that unaccompanied children warrant special protections because of the absence of parental supervision — but failed to pursue policies that keep unaccompanied children safe or to ensure accompanied children can remain with legitimate family members.
Even though CBP is required to move children out of custody within days of their arrival, the agency often holds them for days or weeks in jail-like settings. There have been reports of inadequate food, lack of basic hygiene products, overcrowding, and no access to medical or educational resources.
The American Academy of Pediatrics has found that children who spend even brief stints in detention can experience lasting psychological trauma. The most severe effects of detention include developmental delay, poor psychological adjustment, post-traumatic stress disorder, anxiety, depression, suicidal ideation, and other behavior problems.
Most immigrant detention facilities, including those for families, are operated by private prison companies. In 2015, there were concerns about the new family detention facilities run by Corrections Corporation of America (CCA), since rebranded as CoreCivic. The company operated the Hutto facility and has a long history of poor and even dangerous detention conditions. Amidst scrutiny, CCA barred lawyers from bringing cell phones into immigrant detention facilities and subjected them to lengthy background checks and delays.
The U.S. does not need to subject children and families to inhumane detention practices. The Obama administration implemented programs that favored parole of immigrant families, including establishing the Family Case Management Program. Studies have shown that nearly all immigrant detainees released from custody with some form of monitoring appear for their court date.
The Biden administration publicly supports returning to a system of release for children and families. In one of his early executive orders, President Biden called for the reinstatement of the Central American Minors Program (CAM), which allowed children from the NTC to request asylum in the U.S. from their home countries if they had a parent lawfully residing in the country. Throughout his campaign, Biden called for the end of prolonged detention and specifically cited the cruelty of separating families and detaining children.
Prior administrations have focused their deterrence policies on the most vulnerable population ― children. These deterrence policies, which aim to create such hostile conditions for immigrant families, have proven ineffective and cruel. Attempts to undermine Flores protections for immigrant families have been shut down time and time again but will continue until Congress legislates on the issue.
The Flores standards must be the model for how immigrants are detained, especially during an influx or surge at the border. Policies should be in place to process immigrants quickly, move as many people out of detention space as soon as possible, and provide those who have to remain in detention access to resources. Our system should adapt to provide humane treatment for all people who may seek safety within our country, especially children.