The Evil That Men Do: The Flores Settlement Agreement And Its Contribution To Crimes Against Children – Part II

An approximately 7-minute read.

This is the second part of a multi-part post critically analyzing the Flores Settlement Agreement (FSA) as it pertains to border enforcement along the Southwest border with Mexico and what that has meant for Unaccompanied Alien Children (UACs) since it was signed in 1997. While this installment is shorter than Part I, this one contains many quotes directly from the agreement. I apologize in advance, but for you to understand it, unlike the proverbial sausage, you need to know what’s in this.


What does the Flores Agreement actually say?

As someone who has repeatedly said they aren’t an attorney, the agreement doesn’t strike me as very long; it’s approximately 43 pages, considering it was contested for twelve years, including having been heard by the Supreme Court in 1993. Still, I’ve read it, so you don’t have to. Below is a summary for those of you who aren’t going to litigate it, regulate it, license it, or aren’t even necessarily interested in trying to explain it to others. I’ve highlighted some parts I want you to keep in mind. There won’t be a test; I promise, but you will see references to some of them again.

  1. Th[e] Agreement sets out nationwide policy for the detention, release, and treatment of minors in the custody of the INS (Ed. Remember this was 1997) and shall supersede all previous INS policies that are inconsistent with the terms of [it].”
  2. Acknowledges “[t]he INS treats,” but also requires it to “continue to treat, all minors in its custody with dignity, respect and special concern for their particular vulnerability as [such]. 
  3. Orders “INS [to] place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs, provided that such setting is consistent with its interests to ensure the minor’s timely appearance before the INS and the immigration courts and to protect the minor’s well-being and that of others.” 
  4. Recognizes “[n]othing [in the agreement] shall require the INS to release a minor to any person or agency whom the INS has reason to believe may harm or neglect the minor or fail to present him or her before the INS or the immigration courts when requested to do so.
  5. Specifies “[w]henever the INS takes a minor into custody, it shall expeditiously process the minor and shall provide [them] with a notice of rights, including the right to a bond redetermination hearing if applicable.
  6. Requires “the INS [to] hold minors in facilities that are safe and sanitary” and that it “provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others [including segregating unaccompanied minors from unrelated adults after not more than 24 hours], and [allow] contact with family members who were arrested with the minor.” (Ed. wait, wut?*)
  7. Allows that “[i]f there is no one to whom the INS may release the minor [per] Paragraph 14 (bear with me, I promise I’ll get to it), and no appropriate licensed program is immediately available for placement [as required by] Paragraph 19, [they] may be placed in an INS detention facility, or other INS-contracted facility, having separate accommodations for minors, or a State or county juvenile detention facility.” It specifies; [h]owever, minors [] be separated from delinquent offenders” emphasizing “[e]very effort [] be taken to ensure [] the safety and well-being of the minors detained in these facilities are satisfactorily provided for by the staff.”


*One of the Flores plaintiffs, Dominga Hernandez-Hernandez, was accompanied into the U.S. by her adult brother, Deomedes Hernandez-Hernandez. “[He] had been entrusted by [their] parents [having remained in El Salvador] with her care and custody.” However, while INS released Deomedes [] on bail shortly after arresting him,” Dominga “was not similarly released” because, as I mentioned before, at the time, INS required a parent or legal guardian to appear personally for questioning before releasing a child. Yes, you’ve read that correctly. That summary taken from the original Flores complaint is written evidence the Reagan administration, like I’m sure Carter’s did before, have no doubt H.W. Bush’s would have after; am pretty confident Clinton’s did, and know W.’s did, separate families. Having read that, how many of you still unquestioningly accept assertations the Obama administration was saintly made by people, many of whom now serve in Biden’s who paint(ed) Trump out to be Satan? I’m getting off track, but in addition to promising to write about some of the child-related things Obama’s administration was criticized for, besides just the cages, I mean, if there’s expressed interest, I’ll leave you with the following quote: 

[a] DHS official said [when interviewed for the McClatchy story] it’s frustrating to be blamed for conditions at facilities [i.e., overcrowding and cages] that predate Trump and for creating new policies that were already in action [presumably separations].

Recently, i.e., as of the last few weeks of February and first few of March 2021, there have been articles circulating referencing ‘the Border Patrol holding children for more than three days’ (or 72 hours), which might or might not reference Flores. Still, I don’t believe casually doing so provides accurate or relevant context, so please allow me to try to fill in the blanks.

The agreement requires “[t]he INS [to] transfer a minor from [one of its primary facilities] to a [one] under Paragraph 19, []

within three (3) days,” provided “the minor was apprehended in an INS district in which a licensed program is located and has space available,” as journalists have reported, but that’s not only to comply with Flores, nor does it apply only to UACs. CBP’s National Standards on Transport, Escort, Detention, and Search (TEDS), specifies:

“Detainees should generally not be held for longer than 72 hours in CBP hold rooms or holding facilities. Every effort must be made to hold detainees for the least amount of time required for their processing, transfer, release, or repatriation as appropriate and as operationally feasible.” 

For children, it adds, “[t]he reasons for any detention longer than 72 hours must be logged in the appropriate electronic system(s) of record”, and this is where I think you’ve been short-changed. Flores contains in Section 12.A., several exemptions to that three-day window, including: “within five (5) days in all other cases” such as when a child “must be transported from remote areas for processing or speak

unusual languages such that the INS must locate interpreters in order to complete processing,” and another whereby “in the event of an emergency or influx of minors into the United States, in which case the INS [is only required to] place all minors [in an approved facility] as expeditiously as possible”. So, not to beat a dead horse, but Trump wasn’t anymore leaving kids in cages for days on end as punishment any more than Obama.

If you’re wondering, “the term ’emergency'” per the agreement “[is] defined as any act or event that prevents the placement of minors [per] Paragraph 19 within the time frame provided. Such emergencies include natural disasters (e.g., earthquakes, hurricanes, etc.), facility fires, civil disturbances, and medical emergencies (e.g., a chicken pox [sic] epidemic among a group of minors).” COVID, interestingly enough, despite being a global pandemic, doesn’t seem to count as a medical emergency likely to cause an epidemic in a facility for UACs.

Meanwhile, “[t]he term ‘influx of minors into the United States’ [is] defined as those circumstances where the INS

has, at any given time, more than 130 minors eligible for placement in a licensed program under Paragraph 19, including those who have been so placed or are awaiting such placement.”

As promised, Paragraph 14 establishes an “order of preference” for sponsors to which the U.S. Government can release a UAC. It goes:

A. a parent;

B. a legal guardian;

C. an adult relative (brother, sister, aunt, uncle, or grandparent);

D. an adult individual or entity designated by the parent or legal guardian as capable and willing to care for the minor’s well-being in (i) a declaration signed under penalty of perjury before an immigration or consular officer or (ii) such other document(s) that establish(es) to the satisfaction of the INS, in its discretion, the affiant’s paternity or guardianship;

E. a licensed program willing to accept legal custody; or

F. an adult individual or entity seeking custody, in the discretion of the INS, when it appears that there is no other likely alternative to long term detention and family reunification does not appear to be a reasonable possibility.”

“Before a minor is released from [] custody” to a Sponsor, the latter is required to complete an Affidavit of Support which requires them to be able to “provide for the minor’s physical, mental, and financial well-being; [] ensure the minor’s presence at all future proceedings before the INS and the immigration court” (I’ve previously mentioned the rate at which they Fail To Appear in court, you can probably imagine how well this has gone over two decades); “notify the INS of any change of address within five (5) days following a move;” “not transfer custody of the minor to another party without the prior written permission of the District Director [unless the Sponsor is a parent or legal guardians];” and “notify the INS at least five days prior to the custodian’s departing the [U.S.] … whether the departure is voluntary[,] [] pursuant to a grant of voluntary departure or order of deportation”.

Finally, Paragraph 19 allows for “[a] minor [to] remain in INS[‘] legal custody,” i.e., “placed temporarily in a licensed program” until they can be released per Paragraph 14, “or until the minor’s immigration proceedings are concluded, whichever occurs [first].”

Because of the nature of the agreement, future cases could and have been filed on behalf of UACs, with those later ones also being referred to as “Flores,” e.g., Flores v. Lynch (2016), v. Johnson (2017), v. Sessions (2018), v. McAleenan (2019), etc. as their results alter the original settlement.

Having now outlined what the agreement actually says, in Part III, I’ll break down how it does, as the title suggests, play a part in crimes committed against children.

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