Court Rules that Family Detention Violates Flores Agreement

New York City—Human Rights First today praised a California district court ruling finding that the federal government’s use of family detention facilities  continues to violate the Flores Settlement Agreement. In light of this ruling, Human Rights First reaffirms its call for the Trump Administration to shut down family detention facilities and cease using expedited removal against families.

“Yesterday’s decision by the California district court finally recognizes that the Department of Homeland Security cannot circumvent its obligations under the Flores Settlement Agreement simply by choosing to invoke the harsh tool of expedited removal,” said Human Rights First’s Olga Byrne. “As Human Rights First has long argued, expedited removal is not the only approach available to immigration officials. Families should be referred to regular removal proceedings before an immigration judge or a full interview with an asylum officer, rather than being placed in the flawed expedited removal system. Children and their families should not be locked up in U.S. immigration detention facilities.”

The Flores Settlement Agreement, which sets standards for the detention, release, and treatment of children in immigration custody, grew out of a class action lawsuit filed in 1985 on behalf of immigrant children who had been detained by the former Immigration and Naturalization Service (INS). It requires the government to:

• Release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody;
• Place children in the “least restrictive” setting appropriate to their age and any special needs if suitable placement is not immediately available; and,
• Implement standards relating to the care and treatment of children in immigration detention.

Today’s ruling finds that family detention facilities—located in Pennsylvania and Texas—violate the Flores settlement, as they are secure, unlicensed facilities, that have held a significant number of families for over 20 days. The Court ordered Immigration and Customs Enforcement (ICE) to appoint a juvenile coordinator to monitor compliance with the Flores agreement and provide periodic written reports to the court. Human Rights First urges ICE to appoint a coordinator immediately who has a background in children’s rights and refugee protection.

Human Rights First has long-documented the negative mental and physical health impacts of detention on children and their parents. Leading pediatricians, physicians, and social workers have found that detention, even for short periods of time, can lead to depression, anxiety, behavioral regressions, and suicidality in children.

Not only is the use of detention harmful to children, it is also exceedingly expensive and not necessary. Government data show that families who are not detained and have legal representation are in compliance with their court appearance obligations 98 percent of the time. For cases where additional support is needed to assure appearance for immigration appointments, immigration authorities can use alternative measures that rely on case management and community support. Human Rights First urges the Department of Homeland Security (DHS) and the Executive Office for Immigration Review to implement community-based alternative to detention programs and legal orientation presentations, increase access to counsel, and implement Legal Orientation Programs at the border for families and other immigrants and asylum-seekers.

The court also found that the DHS and ICE have used expedited removal, which often invokes detention, to circumvent Flores obligations. DHS should refer all families directly into removal proceedings before an immigration judge rather than choosing to invoke the flawed tool of expedited removal.

U.S. immigration enforcement authorities are not required to use expedited removal. For many years, the process was only implemented at formal entry points. Since deportation decisions are made by immigration enforcement officers, bypassing court processes, expedited removal presents a number of due process concerns, and the many flaws in its implementation have been documented repeatedly by the bipartisan U.S. Commission on International Religious Freedom and other groups.

“It is not a crime to seek asylum and the Trump Administration should stop sending families seeking asylum to detention facilities,” added Byrne.