If the Trump administration succeeds in ending a decades-old court decision governing the treatment of migrant children, it will be able to detain migrant children indefinitely before they receive immigration court hearings. This 1997 decision, Flores v. Reno, (now known as the “Flores agreement”), resulted in a court-supervised settlement that lays out a set of strict regulations for the detention of immigration children and it has governed their treatment up until now.

The Trump administration’s attempt to end the Flores agreement comes as it still holds about 350 separated children in federal custody who have yet to be reunified with their parents, and as Congress has failed to pass a legislative fix to the ongoing child separation crisis.

What is Flores?

The U.S. government and the Center for Human Rights and Constitutional Law (CHRCL) reached the Flores agreement in 1997 after lawyers filed a class-action lawsuit in 1985 against the U.S. government on behalf of immigrant children in detention. Plaintiffs included a 15-year-old girl named Jenny Lisette Flores, who became the namesake of the case. Flores had been detained for two months in an Immigration and Naturalization Service (INS) facility in substandard conditions, where she was housed alongside adults and was subject to regular strip searches. The CHRCL alleged that the federal government’s treatment of migrant children like Flores violated their due process rights.

Under the supervision of the U.S. District Court of the Central District of California, the Clinton administration reached an agreement with the CHRCL to set up rules governing the treatment of children in detention. This agreement was set to terminate 45 days after the federal government published regulations implementing Flores, freeing the federal government’s juvenile immigrant detention from court supervision. But the federal government never passed regulations doing so and so the Flores agreement continues to apply.

The main issue of contention is the length of time for which children can be detained pending a hearing before an immigration court. By subsequent courts’ interpretations of the Flores Agreement, the federal government is not permitted to detain children under the age of 18 for more than 20 days, and therefore they, along with their families, must be released at that time.

The 20-day restriction had first been introduced through a federal court ruling resulting from the Obama administration’s violation of the Flores agreement. The Obama administration had attempted to address an influx of family migration at the Southern border in 2014 by building family detention centers — a move that was met with litigation that resulted in the Ninth Circuit’s ruling that the Flores agreement applied to families with children as well as unaccompanied minors.

The Ninth Circuit stipulated 20 days was a sufficient amount of time for the federal government to adjudicate families’ asylum claims, after that, children had to be released. There was no specific rule that families had to be released together, but as a matter of practice, the federal government released the whole family after 20 days of detention rather than releasing children separately and keeping their parents in detention.

Critics on the right derisively refer to this policy as “catch and release,” arguing that it allows immigrants to flee rather than attend their immigration court hearing.

How does Flores fit into the family separation crisis?

The Flores Agreement plays a large role in the Trump administration’s implementation of its “zero-tolerance” policy and the resulting family separations. The Trump administration tried to get around Flores by taking children away from their parents, thereby allowing their parents to be held indefinitely, while their children were housed separately. Reporting shows the administration also intended family separations to act as a deterrent against immigrants attempting to cross the U.S. border.

In an interview with Frontline, Cecilia Munoz, the Director of the Domestic Policy Council under the latter half of the Obama administration, said that the Obama administration had briefly considered using family separations as a deterrent but then discarded the idea.

I do remember being struck that that was a pretty extreme proposal, and that it wasn’t considered for very long because it was a terrible idea,” she explained.

Public outcry forced President Donald Trump to halt his administration’s practice of family separations, so now, it wants to find a way to detain parents indefinitely while they await their court hearing and to keep their children with them in detention, rather than be bound by the terms of the consent decree.

In September, Department of Homeland Security (DHS) Secretary Kirstjen Nielsen said that withdrawing from the Flores Agreement was necessary to end one of the “primary pull factors for illegal immigration.” DHS officials argue that the limited detention for minors permitted by the Flores Agreement creates an incentive for undocumented immigration — claiming it’s easier for immigrants to just wait out the 20 days in detention and then flee into the U.S. without attending their immigration court hearing.

Policy experts disagree, saying that the the indefinite detention of children and families is not the way to compensate for the few cases where families disappear after release. Nor would the detention of families act as a deterrent, it is argued.

In an issue brief in June 2017, a coalition of immigrants’ rights groups, including the American Immigration Lawyers Association, argued that detention would “traumatize vulnerable populations, jeopardize the basic health and safety of those detained, and undermine meaningful access to counsel in isolated, remote facilities.” Instead, the solution was to find alternatives to detention, including providing legal counsel to those in the process.

“When people are given lawyers, they show up for court. It’s shown that people who are given lawyers and are given counsel show up at much higher rates,” said Stephen Kang, detention counsel at the ACLU. “We think that counsel and providing due process protections for families is eventually the way to ensure that they show up, not to lock them up unnecessarily.”

Sarah Pierce, policy analyst at the Migration Policy Institute, said that regardless of what steps are taken to implement Flores by regulation, the indefinite detention would not deter forced family and juvenile migration. For those who are migrating for humanitarian reasons like fleeing violence, families are willing to make the trek to the United States in search of safety, regardless of deterrents.

“When it comes to families and humanitarian flows that are being pushed out of their homes, [deterrence] doesn’t work quite as well, or maybe not at all,” she said. “The reality is that we just need to find different tools to work on this problem with.”

A legal challenge would almost certainly follow if the federal government passed regulations without ensuring safeguards for children. After the public comment period ends on November 6, the plaintiffs from the original settlement have a 45-day period during which they can challenge the federal government’s new regulation before the Ninth Circuit. Kang said that “the issue will be litigated” over the degree to which it actually implements the spirit of the Flores Agreement and protects vulnerable children.

Congressional Republicans, for their part, have introduced legislation that would end the Flores Agreement through legislative means. When Senate Republicans released their legislative fix in September for the child separation crisis (S. 3478, the “FAMILIES Act”), one provision would have prevented the DHS secretary  from using any funds to implement Flores.

In a statement released when Republicans introduced the legislation, Sen. Ron Johnson (R-Wis.) said that the legislation “addresses this specific problem by overriding the court decision that has produced the current lose-lose situation and by providing the resources to expeditiously adjudicate asylum claims.” The bill hasn’t made its way out of the Senate Committee on Homeland Security and Governmental Affairs.

What happens next?

So, what’s really at stake as the Trump administration pursues its “zero-tolerance” immigration policy is the future treatment of children by the federal government. Although  family separations have technically ended with the issuing of Executive Order 13841 in June, per Border Patrol statistics, 13,000 “family units” still came across the border in August 2018. Any changes to the Flores Agreement would definitely affect them, but until the regulation is passed, they will still be released after 20 days in detention.

DHS issued a notice of proposed rulemaking on September 7, and citizens now have until November 6, 2018 to comment on it under the provisions of the Administrative Procedure Act, after which the original parties of the Flores Agreement will have 45 days to evaluate the federal government’s actions before a judge on the Ninth Circuit.  

Over 5,000 comments have already been received on the proposed rule. They are mostly negative. One comment from a retired psychologist and psychoanalyst implored the federal government not to implement the new rule.

“As a clinician who has devoted 40+ years to work with traumatized children, I urge you to treat children who seek asylum with the care and concern you would give to your own children, were they caught in such awful circumstances,” wrote Paul Brinich. “The world has enough suffering without our adding to it.”

The federal government wants to be able to prosecute every single irregular border crossing, and this in turn means detaining people for long periods of time before they receive a court date. To achieve this, the Trump administration is willing to detain both adults and children indefinitely, despite warnings from experts about the impacts of long-term detention on a child’s physical and psychological health. And they might just be able to do that. Children would no longer be separated from their parents, but they’d be held in detention centers together instead.

Image: A man, identified only as Luis, walks through a hallway with his daughter, Selena,6, as they relax together after they were reunited on July 26 in El Paso, Texas. Luis, originally from El Salvador, was reunited with Selena at an I.C.E processing center about two months after they were separated when they tried to cross into the United States. Photo by Joe Raedle/Getty Images