Jenny Lisette Flores came to America at 15, fleeing civil war in El Salvador to find protection with family members in the U.S.
Instead, she was detained by federal authorities at the border in California, and spent two months in a detention facility with other children and adults in the mid-1980s. Jenny was handcuffed and strip-searched, and – along with other children – received no educational opportunities, no recreation, and could not have visits from family or friends. Jenny was also told that she could not be released to her aunt, who was deemed a “third-party” adult.
A class action lawsuit filed on Jenny’s behalf led to a milestone settlement that placed limits on the U.S. government’s ability to detain immigrant children. It required the government to release migrant children to certain designated adults or place them in a non-secure licensed facility within five days. In 2015, a court held that the period of detention for immigrant children could be extended to 20 days only in the event of an emergency or an arrival of large numbers of minors.
In a series of decisions since the settlement was reached, the courts have upheld its original terms, emphasized that it applies to all noncitizen children in government custody, and refused to allow the government to amend it.
However, the Trump administration is seeking to undo the 1997 Flores settlement with changes that would again allow immigrant children to be locked up indefinitely. In the midst of its zero-tolerance policy and implementation of separation of parents and children at the border, the administration has announced a plan to issue regulations that would remove the important settlement protections.
On Sept. 6, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Health and Human Services (HHS) issued a public notice of their plans to change the way immigrant children are treated in government custody. The notice details the ways in which the government seeks to gut the Flores settlement, and opens public comment on the proposed changes through tomorrow’s deadline.
The SPLC urged the government today not to move forward with the proposal.
“Rather than punishing children, the United States should implement the Flores settlement through regulations that strengthen its protections through independent review of detention determinations, independently licensed facilities, regular inspections with open reports to the public, and most importantly an approach guided by compassion and rule of law,” the SPLC said in comments it sent to the government today.
“This administration is trying to change immigration policy on the basis of fear, xenophobia, and scapegoating,” said Mary Bauer, deputy legal director for the SPLC. “This latest policy proposal is only the most recent step in furthering the white supremacist goals of a coalition of anti-immigrant organizations who have found their home in the president’s administration.”
The SPLC said in its comments that a core goal of the anti-immigrant hate group Federation for American Immigration Reform has been to strip due process rights away from immigrants who are contesting their deportations. Migrants who are released from detention and have the help of a lawyer to assert their due process rights are more likely to be granted relief from deportation.
In its work through the Southeast Immigrant Freedom Initiative (SIFI), a program of the SPLC that enlists and trains volunteer lawyers to provide free legal representation to detained immigrants facing deportation proceedings in the Southeast, the SPLC said it has seen firsthand the impact that detention has on vulnerable populations.
“Prolonged detention, among other things, deprives children of access to counsel, subjects them to conditions designed to force them to abandon legitimate claims for asylum and other forms of relief from removal, and fails to provide for their physical, emotional, or mental health,” the SPLC said in its comments.
The SPLC also cited data showing that detention and other punitive measures do not deter families from coming to the U.S. to seek asylum, pushing back against a key argument of the Trump administration.
In addition to its other arguments against the proposal, the SPLC cited the exorbitant cost of locking up migrant children: It costs as much as $318.79 a day to detain a child, vs. the cost of alternative programming, which costs as little as $4 or $5 a day.
“Immigration detention is driven by profit and politics, not public safety; it continues to be used widely despite the availability of effective and cost-efficient alternatives to detention,” the SPLC said in its comments.
In fact, the SPLC pointed out that a 2016 Immigration and Customs Enforcement (ICE) advisory committee found that “detention is generally neither appropriate nor necessary for families – and that detention or the separation of families for purposes of immigration enforcement or management, or detention is never in the best interest of children.”
The SPLC further emphasized that the proposed changes do not include oversight of family detention centers, meaning that if the Flores protections were eliminated, DHS would essentially be policing itself in the way it treats children in detention.
“Self-inspections by DHS and its contractors are much weaker than the protections that Flores provides,” the SPLC said in its comments. “DHS’s record of oversight, transparency, and accountability with regard to immigration detention facilities is abysmal. This record demonstrates just how dangerous it would be to allow DHS to bypass state certification standards for facilities that detain children.”