The Hill
(Op-Ed)
By Katharina Obser and Jessica Jones
February 6, 2015
In
1997, following over a decade of litigation, a federal California court
approved the Flores Settlement Agreement, and thereby established
national standards governing
the custody, release, and treatment of any child in U.S. immigration
custody. Flores stands for the principle that children should be
protected and cared for by their families—not locked up. Yet, almost
twenty years later, the Department of Homeland Security
(DHS) continues to fail children by not treating them with dignity
while in Customs and Border Protection (CBP) border facilities and
locking up children with their parents in Immigration and Customs
Enforcement (ICE) family detention.
The
story of the named plaintiff, Jenny Flores –a fifteen year old girl in
1985—is similar to those we hear today. Jenny fled El Salvador to escape
violence and instead
of receiving protection, the then-Immigration and Naturalization
Service (INS) placed children like Jenny in detention facilities with
other adults and refused to release her to family members. Unbeknownst
to Jenny Flores, her case and the settlement agreement
that resulted would have an enormously protective impact for those
immigrant and refugee children who have since entered immigration
custody. Ultimately, the Flores agreement led to the passage of
bipartisan legislation that ensures that unaccompanied children
are not cared for by ICE, but rather by the child welfare agency, the
Department of Health and Human Services’s Office of Refugee Resettlement
(ORR). In addition to upholding the Flores principle of family
reunification, ORR also tries to meet other Flores
principles and standards.
Still
in effect today, and applicable to both DHS and ORR, Flores outlines
strict guidelines for the custody of children: the settlement expresses
that children should
be released from custody without unnecessary delay, requires the least
restrictive setting appropriate, and – in the exceptional case where
detention is required – calls for any detention to be in a non-secure
and child welfare licensed facility. Family reunification
must always be sought throughout custody.
Unfortunately,
DHS is not fulfilling its obligations to these children. Children are
still held by CBP in short-term border facilities that lack enforceable
standards
and are notorious for their cold temperatures, lack of beds, inadequate
food, and completely inappropriate hygiene facilities. As documented a
recent report co-authored by Women’s Refugee Commission and Lutheran
Immigration and Refugee Service, Locking Up
Family Values, Again, children held by ICE in family detention suffer
weight loss, depression, vulnerability to sexual assault, and the
psychological consequences of living through the erosion of the most
basic family structures.
On
Monday, the Flores attorneys filed a motion to compel DHS to enforce
the Flores Settlement, outlining in detail the government’s utter
failure to comply with its obligations
in both the CBP and DHS family detention settings.
What
would compliance with Flores look like? It would mean reduced length of
stay in short-term border facilities with far better conditions, and
only rare stays in ICE
facilities that should feel differently from those in use today. In
addition, it would mean that babies and children would be released with
their mothers and other family members, so that they are free to play,
attend a fully licensed school program, and pursue
the immigration relief for which they are eligible. Most of all, it
would mean that fewer children would be subjected to the devastating
trauma of detention in the first place. The cornerstone of Flores
remains that the government should pursue a policy favoring
release of a child and reunification with family or community-based
sponsors.
Unfortunately,
rather than releasing children, family detention capacity has grown
exponentially and will reach spaces this year – with each space costing
the U.S. taxpayer
an estimated $343 per day rather than the roughly $5 each day of
alternatives to detention (ATD). Where a government official may
determine that a child or family needs additional measures to ensure
that they appear for their immigration appointments, an
ATD such as a community support program or telephonic monitoring could
be used in conjunction with release.
Today,
the hard earned victory of the Flores Settlement is nearly two decades
old, and yet its principles are still not fully implemented. Flores
recognized that children
are a particularly vulnerable group, and that regardless of their
immigration status, we should not subject them to the trauma and lasting
harm caused by confinement. The standards it prescribes – which seek to
protect the most fundamental liberties and rights
of children – are not optional. The government must end its no-release
policies for immigrant families and, whether accompanied or not, afford
all children the right to appropriate treatment and protection.
When protection costs so much less than prison bars—we must ask ourselves, as a nation, why we fail to protect?
For more information, go to: www.beverlyhillsimmigrationlaw.com
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