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A costly choice—putting immigrant kids behind bars

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 4,000 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 on the Flores Settlement and DHS noncompliance, read here.

Obser is program officer in the Migrant Rights and Justice Program at the Women’s Refugee Commission and Jones is Children and Youth Policy associate at Lutheran Immigration and Refugee Service.


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