Judge partially terminates agreement governing conditions for migrant children in US custody

By Rosa Flores, CNN

(CNN) — A federal judge has partially terminated a decades-old agreement that oversees conditions for migrant children in federal government custody, according to a court order that took effect Monday.

US District Judge Dolly M. Gee’s ruling terminates, with exceptions, the 1997 Flores Settlement agreement – which has set the national standards for the humane treatment of children in US custody – at the Department of Health and Human Services, while allowing the agreement to remain in full effect at US Customs and Border Protection and US Immigration Customs Enforcement. The court agreed with the Biden administration, with some exceptions, that a new HHS regulation, which went into effect on Monday, provided appropriate oversight and “multiple safeguards” to account for the lack of state licensing in places like Texas and Florida.

Unaccompanied migrant children go through immigration processing while in CBP custody before they are transferred to the care of HHS, where they remain until they are reunited with a sponsor, like a parent or relative in the US.

“We are deeply disappointed by the Court’s ruling and concerned it places thousands of children in harm’s way,” said Leecia Welch, counsel for the plaintiffs and deputy legal director at Children’s Rights.

The Biden administration argued in May that the new HHS regulation, known as the “Unaccompanied Children Program Foundational Rule,” provided additional protections and responded to unforeseen changes, CNN previously reported.

“The Rule ‘return[s] both parties as nearly as possible to where they would have been absent the changed circumstances’ because it still requires unlicensed facilities to meet their state’s licensing requirements,” Gee said in the ruling.

Attorneys for the plaintiffs argued that the federal regulation fell short of providing some migrant children, like those in medium-secure facilities, with the protections of the Flores Settlement and failed to address the lack of state licensing of unaccompanied migrant shelters in places like Texas and Florida, according to the court order.

“The regulations were a huge step forward – it was the failure to account for the lack of state licensing that created a serious concern for us. Plus, the fact that the regulations fail to protect some of the most vulnerable children in ORR custody – those in more restrictive placements who often have more acute trauma and mental health needs,” Welch said. ORR refers to the Office of Refugee Resettlement, an agency within HHS.

The Biden administration argued that the new federal regulations require shelters housing unaccompanied migrant children “to be state-licensed or, if state licensing is not available … to adhere to the state’s licensing requirements,” according to court documents.

CNN has reached out to HHS for comment. In April HHS Secretary Xavier Becerra said the new federal regulation “underscores HHS’ unwavering commitment to the health, safety, and welfare of unaccompanied children in our care.”

“By enhancing the legal framework governing the UC (unaccompanied children) Program, we set clear standards for the care and treatment of unaccompanied children in ORR’s custody and the support they receive as they transition into new communities,” Becerra said in a news release at the time.

Gee’s ruling allows attorneys representing the plaintiffs, like Welch, to have access to HHS facilities and to information about the children in custody there – which leaves the door open for attorneys to keep an eye on migrant children in HHS custody.

“Our team will hold the government accountable to their promises to keep children in unlicensed facilities safe -and if they fail to provide adequate alternative safeguards to state licensing in Texas and Florida – we will not hesitate to return to court,” Welch said.

The Trump administration tried but failed to terminate the Flores Settlement in 2019, according to court documents.

Under Gee’s ruling, the court has the power to modify the order if the circumstances change, including if the new federal regulation is rescinded or modified to be inconsistent with the Flores Settlement – which gives some attorneys confidence that the order has the necessary guardrails to protect migrant children regardless of who occupies the White House.

“The fact that the order retains jurisdiction over both HHS and DHS and maintains our ability to hear directly from children gives me hope that no matter what happens in November- the fundamental protections afforded to immigrant children under Flores for the last 27 years will continue,” Welch said.

But some immigration advocates and attorneys are still concerned that the ruling could mean some migrant children in government detention could end up in dangerous conditions.

“Having spent almost two decades advocating for children in government custody, I have repeatedly witnessed children in dangerous conditions. The premature termination of Flores creates a situation in which unaccompanied children in immigration custody may end up in dangerous conditions that go unnoticed and unaddressed for years to come,” said Neha Desai, senior director of immigration at the National Center for Youth Law.

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