The Evil That Men Do: The Flores Settlement Agreement and its Contribution to Crimes Against Children – Part III

An approximately 9-minute read.

This is the third installment of a multi-part post about the Flores Settlement Agreement (FSA). In Part I, I recounted the historical events that lead to the need for such an agreement, and in Part II outlined the agreement itself. This one details border enforcement strategies and identifies systemic failures by the U.S. Government to uphold its end of the bargain—really the only part as children only need come to or be in the United States unlawfully.



Changes for change’s sake

In a bid “to move away from the adult detention model,” which led to appalling treatment necessitating the Flores consent agreement, and at a time it was already reorganizing the immigration function in response to the attacks of September 11, 2001, Congress through Section 462 of the Homeland Security Act of 2002, “transferred to the Director of [Health and Human Services’] Office of Refugee Resettlement [] functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the [INS])” codified as 6 U.S.C. § 279.

Dr. Dora Schriro, who then-DHS Secretary Janet Napolitano appointed in 2009 to be a Special Advisor to ICE on Detention & Removal, would, after leaving that position, publish a white paper in 2018, Weeping in the Playtime of Others: The Obama Administration’s Failed Reform of ICE Family Detention PracticesIn it, she writes, “[s]oon [after 9/11], the expedited removal process [8 U.S.C. § 1225] was expanded to encompass some asylum seekers and other migrants crossing US land borders (DHS 2004), which resulted in detention, the preferred management strategy, and disproportionately affected families. The US largely abandoned its [earlier] policies of either releasing families or detaining them in family units and, instead, separated parents from their children and one another, detaining the adults and sending the children including infants and toddlers, to facilities operated by ORR [the office of Refugee Resettlement]. The involuntary separation of parents from their children had the effect of rendering the children’ unaccompanied’ for legal purposes”. 

Leon Fresco, now a private-practice immigration attorney, was a Deputy Assistant Attorney General during the Obama administration and would famously employ (or maybe deploy is a more accurate description) similar rhetoric in 2015, “warn[ing] [Judge Dolly M.] Gee [who since 2012, is the only judge that can hear a “Flores” case replacing Judge Robert J. Kelleher who had passed away] that if her ruling [finding the agreement also applied to children in Family Units and provided their parents affirmative rights to be released from detention] stood, it would encourage the Obama administration to separate parents and children, turning them into ‘de facto unaccompanied children.’” This case, known now as Flores v. Lynch would be “affirmed in part and reversed in part” by the Ninth Circuit the following year.

Dr. Schriro further notes that “[i]n 2005, the House Appropriations Committee directed DHS to stop separating families” and summarizes the statement from its conclusion. However, that part of the House Report for the 2006 DHS Appropriations bill reads: The Committee is concerned about reports that children apprehended by DHS, even as young as nursing infants, are being separated from their parents and placed in shelters operated by the Office of Refugee Resettlement (ORR) while their parents are in separate adult facilities. (Ed. New York magazine’s Intelligencer website published an article by Margaret Hartmann on June 20, 2018, titled “Trump Administration Keeps Babies and Toddlers in ‘Tender Age’ Shelters,” which not surprisingly failed to mention that at least as recently as 2010, a certain tan suit-wearing POTUS’ administration via HHS-2010-ACF-ORR-ZU-0074, had solicited for such facilities.) Children who are apprehended by DHS while in the company of their parents are not in fact ‘unaccompanied;’ and if their welfare is not at issue, they should not be placed in ORR custody. The Committee expects DHS to release families or use alternatives to detention such as the Intensive Supervision Appearance Program whenever possible. When detention of family units is necessary, the Committee directs DHS to use appropriate detention space to house them together.”

As for Dr. Schriro, she would be tapped in 2015 to participate in DHS’ Advisory Committee on Family Residential Centers (ACFRC). Not surprisingly, unless you’re one of those people who steadfastly insists that no family had ever been separated before Trump—hopefully not still despite documentary evidence presented to the contrary—it should come as no surprise the very first recommendation was that “immigration enforcement practices should operationalize the presumption that detention is generally neither appropriate nor necessary for families – and that detention or the separation of families for purposes of immigration enforcement or management, or detention is never in the best interest of children. DHS should discontinue the general use of family detention, reserving it for rare cases when necessary following an individualized assessment of the need to detain because of danger or flight risk that cannot be mitigated by conditions of release.

Reauthorized legislation and an English guy with a regrettably forgettable name

In 2000, Congress passed the Victims of Trafficking and Violence Protection Act or the TVPA for short. I mainly mention it to set the stage; however, Section 1513 of it is the origin of the “T” and “U” nonimmigrant visas intended to provide “a temporary immigration benefit [to] enable[] certain victims of a severe form of human trafficking” or otherwise “trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status” an opportunity to remain in the [U.S.] for several years if they have assisted law enforcement in an investigation and prosecution of [crimes against them].” It was thought—and by that, I mean that’s what Congress said—creation of these two new classifications would help law enforcement officials “better serve” illegal immigrant crime victims because those individuals would be encouraged to report and be willing to help prosecute those who committed against them. Of course, as well-intentioned as this might have been, at least in the case of U-visas, it’s become a cottage industry of fraud to game the system

While “[t]he [TVPA] has been reauthorized and updated, five times” since 2000, it’s the 2008 reauthorization that is relevant here. Unlike earlier versions of the legislation, this renewal of the TVPA was dedicated to William Wilberforce, a late-18th century British Parliamentarian, philanthropist, and anti-slave trade crusader, but ironically still more commonly known as the TVPRA, in other words, the reauthorization of the TVPA. 

Section 235 of the TVPRA codified Section 101 of S. 119, the Unaccompanied Alien Child Protection Act of 2005 (UACPA)legislation passed by the Senate by unanimous consent, but which was never introduced in the House. The provision under the guise of “enhanc[ing] the efforts of the United States to prevent trafficking in persons, [requires] the Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Secretary of Health and Human Services,” “develop policies and procedures to ensure that unaccompanied alien children … are safely repatriated to their country of nationality or of last habitual residence” provided “[the] child has not been a victim of a severe form of trafficking in persons, and there is no credible evidence that [they are] at risk of being trafficked upon return to the[ir] [] country of nationality or [] last habitual residence; [] does not have a fear of returning … owing to a credible fear of persecution”. Sounds great, right? Too bad, it only applies to those from “a country that is contiguous with the United States,” i.e., Canada and Mexico, and in theory, countries in the Caribbean.

When it comes to immigration, especially its enforcement, I’m a tremendous critic of Obama; however, faced with overwhelming numbers of UACs during his second term, even he saw the inherent limitations imposed by the TVPRA on removing those children from non-contiguous countries and asked Congress to amend it. I can only imagine that because the legislation passed both chambers by unanimous consent, Congress as a whole is too stubborn and prideful to admit their legislation, no matter how seemingly well-intentioned doesn’t work as intended.


In the fourth and final part, we’ll delve into how, much like the social compact with its citizens, the U.S. Government doesn’t care enough about the problem of generations of children making the dangerous trek to the U.S., and its only solution is to offer them amnesty periodically.

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