The Silver Bullet #1: The Flores Agreement
Welcome to The Silver Bullet, a series of posts and lawsplainers from a leftist lawyer trapped in Trump’s America. I’m using the only tool I have at my disposal to fight back — my degree. Because education really is the silver bullet, and I try to do my part.
For everyone who isn’t a Kool-Aid drinking cultist, it’s reasonable to say that things have been bad since 2016. Technically, things have been bad for a longer time than that, but the DEFCON level moved up a few notches when the Manchurian Candidate was elected President of the United States. Because of this, it’s been a constant assault for the last two and a half years. It can require more energy than we have to pay attention to everything this blinkered plum says and does. It can be helpful sometimes if someone is able to point out the thing that they think is burning the hottest.
NB: (Burning … apart from the Amazon, which is very, very bad. Donate if you can to charities seeking to reclaim and preserve the rainforests.)
Everything may be on fire, but the most recent fiery metaphorical explosion involves a 1997 court settlement that has essentially kept thousands, if not millions, of children out of the camps. It’s called the Flores Agreement, or the Flores Settlement, and this Manchurian administration is trying to break it.
The Flores agreement stemmed out of a class-action lawsuit filed in 1985, on behalf of a handful of girls who had been detained by INS (Immigration & Naturalization Services, the precursor to USCIS (U.S. Citizenship & Immigration Services, which runs ICE). The suit stated that girls as young as 13 were required to undergo strip searches and invasive body cavity searches, with no monitoring and no right to leave detention (one of the girls, Dominga Hernandez-Hernandez, actually made bail, but was detained without anyone even trying to find a sponsor to care for her). After a ton of legal wrangling, a settlement was reached in 1997, enforcing standards on INS that they had to observe while detaining minors. These amazingly compassionate standards included “ suitable living accommodations, food, appropriate clothing, and personal grooming items,” as well as assessments for health conditions and disability and required education and leisure time. (Let me be clear: this is the bare minimum that a detained person should receive.) Also, under Flores, kids must be released from detention within 20 days, at least in theory. If a child cannot be released for some reason — for example, if no sponsor or guardian can be found — Flores also sets out procedures for humane and compassionate care for children, in a facility licensed to care for people under 18.
Obviously, this situation is nowhere near perfect — ideally, no kid would ever be detained in some cold government facility, especially not alone. Detention is “no place for a child,” even if they are with their family, and multiple studies have shown that long-term psychological damage and emotional trauma can result in children even after short periods in detention. But Flores is one of the tools we have in our arsenal right now, and we have to use it and protect it until we get new supplies. In short, it’s a hell of a lot better than the alternative.
Still, the agreement is not well understood, despite the fact that its contents can basically be boiled down to “Give migrants the minimum things that help them preserve their dignity and self-respect, you jackasses.” And too often its standards are ignored in favor of bickering about who began the policy of family separation. The important thing to remember about the agreement is that it explicitly gives certain minimal rights to people who are being detained under our immigration system. This administration is trying to eliminate those rights. And maybe I’m just bitter and cynical, or maybe I’m missing the forest for the trees, but I can’t think of one single reason to do that that isn’t rooted in malice and prejudice. So that’s no good at all.
Before I go any further, we do have to address, again, a horse that has been beaten to death, resurrected only to get beaten to death again, and is currently in cryo-freeze waiting to be resurrected again. President Obama’s administration absolutely did detain families for a period of time — but it did not separate them, except in rare cases. This is a demonstrable fact, and there are a whole lot of case cites to prove it — the case law simply doesn’t discuss separation of families, and if it had been happening, it would have been discussed at the same time as the detention, given that Flores makes no provision for separation.
Even the detention policy was eventually discontinued— while being sued, the administration chose unilaterally to no longer pursue a policy of deterrence (locking people up to warn others not to come to the US). Going forward, ICE tried to release people as soon as possible, and continue to detain only those who had criminal records or children for whom no sponsor could be found. (Key word, tried. There were absolutely some cases where families were kept apart for a long time — but not deliberately, not callously and not without attempts at reunification.)
However.
Internet commenters like to cite these facts as if they somehow pardon the current administration for not only separating and detaining families, but also for ratcheting up the frequency and the cruelty almost solely for the hell of it. Uh, FYI? It doesn’t. Just because your older brother broke the rules didn’t get you off the hook with Mom, did it? Because if it did, well, you had a pretty lousy mom.
Yes, the Obama administration violated the Flores agreement. Full stop. But that isn’t the point, and anyone who harps on it is trying to score points instead of see the big picture: the fact that these policies have been used, on and off, since 2014, is all the more reason to end it now. It doesn’t matter whose administration started them. It matters who is using them now and how we can stop it. It’s like the Jeffrey Epstein case — who cares if Bill Clinton is implicated or does jail time? Lock him up if he deserves it! He doesn’t get a pass just because he’s a Democrat. The greater responsibility is punishing alleged pedophiles, not protecting “your” people at all cost. Come on. Eyes on the prize, chief.
Now, getting down to brass tacks: the current administration has detained families. They have also separated approximately 30,000 families since the policy was implemented in 2018. Flores states that children cannot be detained for more than 20 days. The answer that the Obama administration came up with in most cases was to release those families into the community while requiring monitoring and regular check-ins with immigration authorities. Instead of pursuing that cost-effective and somewhat more humane solution, the current administration wants to detain everyone.
There are two major prongs to the administration’s attempts to invalidate Flores, both of which would essentially ensure that the rights of immigrants and asylum seekers would go up in smoke. The first is the removal of the 20-day limit — meaning that families with children and babies could be detained indefinitely. The administration states that this means that families will be detained until their hearings in immigration court — but that doesn’t mean the two or three months that White House officials estimate. The TRAC Immigration tool operated by Syracuse University shows nearly one million cases backlogged, with an average of just over 700 days to wait before a disposition.
Think about that. 700 days — nearly two years, detained, in facilities where dangerous overcrowding, open toilets, medication denial, dehumanization, lack of privacy, and sexual molestation are common, even expected at this point. And, as if that wasn’t hideous enough, the May 16 report from the Office of the Inspector General openly admits that these horrific conditions are deliberate — designed as deterrence for any future migrants who might seek to come to the United States. The report speaks of the necessity of a “consequence delivery system” or the flow of migrants might increase.
Does that scare you, that turn of phrase? “Consequence delivery system.” Because it scares me. So much poor treatment — a “consequence delivery system”, plus no oversight, plus guards with a documented history of hatred against the people they are guarding … I know what it reminds me of.
There are many people who have used the term ‘concentration camps’ to describe the current situation. As a Jew who has, y’know, read a history book recently, I feel qualified to make this clear: there are two types of Nazi camps — death camps such as Auschwitz, where murder was the primary reason for the camp’s existence; and concentration camps such as Bergen-Belsen (where Anne Frank died), which were holding pens for Jews and other “undesirables” while their fate was debated. Our schools do not make this distinction, evidently, but they should.
The second prong of this administration’s attack on Flores is removing the requirement that any immigration detention centers be state-licensed, instead allowing the Department of Homeland Security (DHS) to license them directly. Surely I don’t have to spell out why that would be a catastrophically bad idea, but I will anyway — in every civilized country in the world, centers like this (if they have to exist) are subject to outside oversight. The administration is arguing that many states don’t have the procedures to license the centers, so the feds should take over — but the remedy for that is to make states develop procedures, not to commandeer the process yourself.
In short? Without Flores, there is literally no reason for the administration to even pretend to give one single half a damn about the rights guaranteed to immigrants by U.S. law, by international law, and by y’know. Morals. It would be able to detain asylum seekers and other migrants basically as long as they please, and have no obligation to give them any kind of quality of life while they do it. But public backlash has made them stop before — commenting on the rule, calling your members of Congress, general raising hell. It’s worth trying to do it again.
So, the million dollar question alluded to in the title. Why should you care?
“Because I’m a human with love and compassion for others and the thought of innocents locked in hell pits disgusts me and keeps me up at night” should really be your first answer, you utter coat hanger. But if, for some reason, it isn’t? You should care because trying to invalidate Flores for no other reason than because he can, Trump and his administration are testing what the public will accept. Today Flores — maybe tomorrow it will be Roe. Or Miranda. Who knows? You should care because, to paraphrase Pastor Martin Niemoller, you’re still here to stand up for immigrants. This way, maybe one day there will be someone left to stand up for you.