By: Pablo Castellanos
On June 20, President Trump issued an Executive Order ending the family separation policy.But this does not end the humanitarian crisis that he created.The administration has stated that it will detain all families with children, regardless of whether they are asylum seekers, or pose a flight risk or a danger to the community.Unfortunately, even though the administration abandoned the family separation policy,there are still fundamental questions that need to be answered especially in regard to the Flores v. Reno Settlement Agreement (FSA).
- Rights Afforded to Immigrants by FSA
Since 1997, the treatment of unaccompanied childrenand undocumented children who immigrate with families and who are placed in immigration custody or detention has been governed by the FSA.The FSA created standards for the detention of immigrant children and detailed responsibilities of the federal agency responsible for the detention of immigrants.The FSA required that immigration officials detaining minors provide:
- Food and drinking water;
- Medical assistance in the event of emergencies;
- Toilets and sinks;
- Adequate temperature control and ventilation;
- Adequate supervision to protect minors from others, and
- Separation [of children] from unrelated adults whenever possible.
Additionally, the FSA requires that the Immigration and Nationalization Service (“INS”):
- Ensure prompt release of children from immigration detention
- Place children for whom release is pending, or for whom no release option is available, in the “least restrictive” setting appropriate to the age and special needs of minors; and
- Implement standards relating to care and treatment of children in U.S. immigration detention.
- The End of the Family Separation
In April, U.S. Attorney General Jeff Sessions ordered prosecutors to adopt a zero-tolerance policy for illegal border crossing.White House officials have acknowledged that under this policy, they have separated families who cross the border.Then, in late June, President Trump signed an executive order reversing his policy of separating families.He replaced the policy with a new policy of detaining entire families together ignoring the legal time limits on the detention of minors.A 2015 court order, based on the FSA, prevents the government from keeping children in detention for more than 20 days.President Trump has instructed Attorney General Jeff Sessions to ask the federal court to modify that agreement to allow children to be kept in detention indefinitely.
- Why the United States Should not Modify the FSA
For the last thirty years, there has been an increase in immigration enforcement which has swept up non-criminal immigrant children and their families, and those detainees have been subject to inhuman conditions and abuse.Because of this, the United States government’s treatment of vulnerable populations—such as non-criminal immigrant child and their families—in detention and removal proceedings is of upmost concern. Additionally, the undocumented presence in the United State is not a criminal offense—it is a civil infraction.However, as Stephan H. Legomsky explains, “[I]mmigration law has been absorbing the theories, methods, perceptions, and priorities of the criminal enforcement model while rejecting the criminal adjudication model in favor of a civil regulatory regime.”Immigration law has “imported” the criminal justice model to regulate immigration without implementing any of the procedural safeguards—such as the right to counsel—into the process.
For these reasons, congressional action is needed to ensure that all children are protected and have access to necessary services.Congress should pass legislation that codifies the settlement agreements into federal law; establishing a clear national policy for the treatment of immigration children.As Kofi A. Annanhas said:
There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.
Amrit Cheng, Fact-Checking Family Separation, American Civil Liberties Union (June 21, 2018), https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/fact-checking-family-separation.
An unaccompanied alien child (hereinafter “unaccompanied child” or “unaccompanied children”) is a child who is “less than 18 years old who arrive[s] in the United States without a parent or legal guardian and [is] in the temporary custody of federal authorities because of their immigration status.” U.S. Dep’t of Homeland Sec., Office of the Inspector General, CBP’s Handling of Unaccompanied Alien Children 1 (2010), available at https://www.oig.dhs.gov/assets/Mgmt/OIG_10-117_Sep10.pdf.
Chad C. Haddal, Unaccompanied Alien Children: Policies and Issues, at Summary (2009).
Stipulated Settlement Agreement at 3, 7-18, 20, Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997), available at https://www.aclu.org/files/pdfs/immigrants/flores_v_meese_agreement.pdf [hereinafter Flores Settlement Agreement].
Jessica G. Taverna, Note, Did the Government Finally Get It Right? An Analysis of the Former INS, the Office of Refugee Resettlement and Unaccompanied Minor Aliens’ Due Process Rights, 12 Wm. & Mary Bill Rts.J. 939, 953 (2004). (quotingAmnesty Int’l USA, United States of America: Unaccompanied Children in Immigration Detention 17 (2003)).
After 2002 the INS dissolved and the Department of Homeland Security (“DHS”) took over.
See Taverna, supra note 9.
Camila Domonoske & Richard Gonzales, What We Know: Family Separation and ‘Zero Tolerance’ at the Border, National Public Radio(June 19, 2018, 2:17 PM), https://www.npr.org/2018/06/19/621065383/what-we-know-family-separation-and-zero-tolerance-at-the-border.
See, eg., Amnesty Int’l, United States of America: Human Rights Concerns in Broder Region with Mexico (Including Errtam) 29 (1998), available at https://www.amnesty.org/en/library/asset/AMR51/003/1998/en/b0c4df92-e821-11dd-9deb-2b812946e43c/amr510031998en.html.
The Immigration and Nationality acts defines “child” as “an unmarried person under the age of twenty-one years of age.” 8 U.S.C. § 1101(b)(1) (2006).
Dora Schriro, U.S. Dep’t of Homeland Sec., Immigration and Customs Enforcement, Immigration Deteention Overview and Recommendation 4 n.2 (2009). Available at https://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf. Schriro notes “Immigration proccedings are civil proceedings and immigration detention is not punishment.” Id.(citing Zadvydas v. Davis, 533 U.S. 678, 690 (2001)).
Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 Wash. & Lee L. Rev. 469, 472 (2007) (emphasis omitted).
Rebeca M. Lopez, Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant Children in U.S. Custody, 95 Marq. L. Rev. 1635 (2012).
Kofi A. Annan, Forward to U.N. Children’s Fund [UNICEF], The State of the World’s Children 2000,at 4 (2000).