Most recently, the administration issued a replacement of the Flores Settlement Agreement – a decades-old immigration policy with deeply rooted ties and implications for immigration practices in the United States.
Instituted in 1997, the Flores Settlement Agreement effectively limits the amount of time unaccompanied children can be held in detention to 20 days upon seeking entry to the United States.
The policy was born as a result of a class-action lawsuit filed on behalf of Jenny Lisette Flores – a 15-year-old girl who fled El Salvador in 1985 to enter the United States and claimed mistreatment while being held in juvenile detention at the border.
In claiming physical and emotional harm was incurred during extended detention times, Flores v. Reno set a new national precedent for the detention and treatment of immigrant children held at the border.
Originally, the legal settlement reached in the late 1990s during the Clinton administration was designed as a temporary arrangement until formal regulations could be instituted.
Despite these intentions, however, the settlement was adhered to without the issuance of federal regulations until 2008 when it was partially codified.
In 2015, the policy was expanded under the Obama administration to include 20-day detention limits not only for unaccompanied children, but also for accompanied children as well. This effectively expanded the policy to apply to families and adults with children.
Director of U.S. Citizenship and Immigration Services (USCIS) Ken Cuccinelli recently characterized Flores at an event in Austin as a beacon for illegal immigration and fraudulent asylum claims, stating that “suddenly children were seen as the ticket in.”
According to Cuccinelli, data analysis of immigration statistics indicates a significant increase in the number of individuals seeking entry at the border following the expanded Flores protocols under the Obama administration.
An analysis of the implications and evolution of the Flores Agreement by the Center of Immigration Studies further reiterates this point by saying, “Partially driven by Flores, the number of apprehended aliens who claim credible fear (the first step in applying for asylum) has soared – up 67 percent in fiscal year 18 vs. fiscal year 17, and up over-tenfold from a decade ago.”
Additionally, because children were seen as a way of gaining entry, Cuccinelli also attributed the expansion to an increase in the exploitation of children, as human trafficking and child “recycling” have become more prominent practices for border entry.
The expansion of Flores also paved the way for the separation of families upon arrival at the border, as children are required to be released even if their parents are detained while awaiting immigration proceedings.
The idea of “catch and release” was born from this practice, as entire families are often released at the end of the 20-day detention period.
In 2016, a Ninth Circuit judge reaffirmed that Flores applies to all children, whether accompanied or not, but also reversed the notion that parents have an affirmative right of release.
The replacement of the Flores Agreement unveiled by the Trump administration in recent weeks seeks to curb illegal immigration by ending the 20-day detention limitation for families.
Supporters argue that the Trump administration’s new policy effectively ends the practice of “catch and release,” cuts down on child trafficking, and curbs concerns over separating children from parents. Some detractors, however, argue that the new policy allows families to be held for an indefinite amount of time until their immigration cases are adjudicated.
Additionally, the new policy makes no exceptions for children.
The updated policy also authorizes federal licensing of immigration facilities, where previously, facilities were subject to state licensing regulations in the absence of a federal standard.
First proposed last fall, the new rule is set to take effect 60 days after publication in the Federal Register. That means the new policy effectively undoing the 20-day limit on detention will take effect on October 22 assuming no objections from a federal judge.
According to Director Cuccinelli, as of last week, the Flores replacement has already received more than 133,000 public comments, making it the second highest publicly commented rule in the history of the Department of Homeland Security.
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Sarah McConnell is a reporter for The Texan. Previously, she worked as a Cyber Security Consultant after serving as a Pathways Intern at the Department of Homeland Security – Citizenship and Immigration Services. She received her Bachelor’s degree in Political Science from Texas A&M as well as her Master of Public Service and Administration degree from the Bush School of Government and Public Service at Texas A&M. In her free time, Sarah is an avid runner, jazz enthusiast, and lover of all things culinary.