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

An approximately 12-minute read.

This is the final, I promise, one of the multi-part post about the Flores Settlement Agreement (FSA). As you might recall, Part I was a history lesson to set the stage for the agreement, while Part II examined the relevant parts of the agreement paragraph-by-paragraph. In Part III, I explained border enforcement and began identifying shortcomings of the deal, and in this one, I lay bare the dark sides of Flores: the many types of crimes perpetrated against children the part the U.S. Government often plays in them.

 

PART IV.

Stupid, lazy, or duplicitous

In the two decades since the U.S. Government first entered into the Flores Agreement, we’ve gone from not releasing a child unless a parent, who’s usually themselves unlawfully present, submits themselves to “interrogation” by an Immigration Officer to waiving fingerprints of potential Sponsors, and inadequate background checks conducted on less than 10% of them (there would be similar issues vetting DACA recipients) despite there being a detailed process documented which requires both, and not doing home studies unless the child is ‘special needs’, a victim of a severe form of trafficking or physical or sexual abuse, or whose proposed sponsor “presents a risk of abuse, maltreatment, exploitation, or trafficking to the child based on all available objective evidence,” to not following up with Sponsors because according to the then-Acting Assistant Secretary for HHS’ Administration for Children and Families, “it has been HHS’s long-standing interpretation of the law [8 U.S.C. that [the Office of Refugee Resettlement] is not legally responsible for children after they are released from ORR care”, a comment so cavalier no one should be surprised it sparked claims the Trump administration “lost” 1,475 children in 2017 resulting in the hashtag  #WhereAreTheChildren, though ironically, as Reason points out in it’s almost missable correction, [t]he [lost] children … reached the southern U.S. border between 2013 and 2016.

Unsurprisingly, despite the qualifying term “unaccompanied,” children, like single adults, and families aren’t likely traveling 1,100+ miles across multiple countries and, in the case of Mexico, through cartel territory to reach the U.S. alone. People can disagree over whether the act is smuggling or trafficking; it’s most often technically smuggling. Still, in this context, the two really are almost a distinction without a difference as the desired end result is the child’s delivery to someone in the U.S. 

As the number of UACs increase each year, resources devoted to them struggle to keep pace, and shortcomings aren’t solved by throwing money at the problem; the Fiscal Year (FY) 2021 budget request for UACs was $1,983,245,000.00 (that’s $1.98 BILLION U.S. DOLLARS for those who unlike me are too ashamed to count the digits before the decimal). That was an increase from $1.30B in FY 2020 but significantly lower than the $4.47B in FY 2019; however, $2.88B was emergency supplemental funding. In the end, the very children the U.S. Government claims to be protecting are at best not helped and, worse, sometimes harmed, not to mention the effects on American children: overcrowded schools, criminality, diseases like AFM (Acute Flaccid Myelitis), etc.

Some of you might remember the Obama administration placed children with traffickers, and if not, well, it’s true. The Washington Post not only confirmed the allegation in 2016, Snopes was forced to rate it “True” though they tried to downplay it by checking the claim “[s]ome immigrant children…” as if there were an acceptable number of children per administration with which we should be okay? In addition to the obvious outrage, the ‘egg incident’ would provoke “an investigation of HHS’s [sic] process for screening potential UAC sponsors and other measures to protect [them] from trafficking” by the Senate Homeland Security and Governmental Affairs Committee’s Permanent Subcommittee on Investigations.

The subsequent January 2016 report, “Protecting Unaccompanied Alien Children from Trafficking and Other Abuses: The Role of the Office of Refugee Resettlement,” was damning. Findings include: 

  • “HHS’s process for verifying the alleged relationship between a UAC and an individual other than a parent, guardian, or close family member is unreliable and vulnerable to abuse.”
  • “HHS is unable to detect when a sponsor or group of related sponsors is seeking custody of multiple unrelated children.” 
  • Though the report notes, “[e]ffective January 25, 2016, HHS ha[d] strengthened its background check policies,” it faults HHS for “fail[ing] to conduct adequate background checks,” indicating that “[t]hroughout the time period examined by the Subcommittee, HHS did not conduct background checks on all relevant adults[] [because] HHS’s long[-]standing policy was to conduct [them] only on the sponsor, and not on any other adult listed as living in the [] home… And if that check turned up a criminal history, HHS policy was that no criminal conviction could disqualify a sponsor, no matter how serious.”
  • “HHS does not adequately conduct home studies.”
  • “After a child’s release to a sponsor, HHS allows sponsors to refuse post-release services offered to the child—and even to bar contact between the child and an HHS care provider attempting to provide those services.”
  • “Many UACs fail to appear at immigration proceedings.”

 

The report concludes, “[t]hese deficiencies in HHS’s policies expose UACs to an unacceptable risk of trafficking and other forms of abuse at the hands of their government-approved sponsors. Beyond the Marion case [] the Subcommittee has identified and reviewed 13 other[s] [] involving post-placement trafficking of UACs and [and additional] 15 [] with serious trafficking indicators. The Subcommittee is unable to say, however, with any certainty how many more UACs placed by HHS have been victims of trafficking or other abuses, in part because HHS maintains no regularized means of tracking such cases.” 

Not just enabling, but facilitating the smuggling of children

Alluded to but not explicitly noted in the report is the part the U.S. Government plays through Flores in completing smuggling and trafficking conspiracies—the crime, not theories. Still, other than annual numbers of UACs encountered by CBP at a PoE or between them, and those placed by HHS, there really are no available figures because no matter the party in power at the White House, neither wants people to know that the Executive, at the behest of the Legislative and with the aid of the Judiciary, is engaging in large-scale child smuggling and an unknown amount of subsequent trafficking. 

Some of you probably got this far only to dismiss me after the last paragraph as some sort of Qanon proponent; however, the comment is based on remarks made by a judge, Andrew Hanen (of DACA fame) from the U.S. District Court for the Southern District of Texas in his Order in a 2013 criminal case, United States v. Nava-Martinez

To set the stage, Mirtha Veronica Nava-Martinez, who at the time of her apprehension for human smuggling in violation of 8 U.S.C. § 1324(a)(l )(A)(ii), was “a resident alien,” already convicted in 2011 of “food stamp fraud” pled guilty to attempting to smuggle a ten-year-old Salvadoran girl, “Y.P.S.” with whom she had no prior relationship into the U.S. through the Port of Entry at the Brownsville & Matamoros International Bridge using a birth certificate that belonged to one of her own daughters.

“This conspiracy,” Judge Hanen notes, “started when Patricia Elizabeth Salmeron Santos solicited human traffickers to smuggle [her daughter] Y.P.S. from El Salvador to Virginia [agreeing to pay $8,500, $6,000 in advance]. Salmeron Santos … applied for a tourist visa in 2000, but was turned down. Despite being denied legal entry … she entered the United States illegally and is living in Virginia.” He continues, “[t]he criminal conspiracy instigated by Salmeron Santos was temporarily interrupted when Nava-Martinez was arrested. Despite this setback, the goal of the conspiracy was successfully completed thanks to the actions of the [U.S.] Government.” Lest you think this case represented an isolated incident, Hanen makes a point to mention: 

“This is the fourth case with the same factual situation this Court has had in as many weeks. In all of the cases, human traffickers who smuggled minor children were apprehended short of delivering the children to their ultimate destination. In all cases, a parent, if not both parents, of the children was in this country illegally. That parent initiated the conspiracy to smuggle the minors into the country illegally. He or she also funded the conspiracy. In each case, the DHS completed the criminal conspiracy, instead of enforcing the laws of the United States, by delivering the minors to the custody of the parent illegally living [here].”

As I’d mentioned previously, issues with Family Units have been around for some time, and children are only a separation away from becoming “unaccompanied.” But, if you’re smuggling and/or trafficking a child and got your money upfront, even if you get caught, you can count on likely satisfying your customer and ensuring future referrals because, as Judge Hanen points out, despite being “notified [] Salmeron Santos instigated this illegal conduct,” DHS “did not arrest her. It did not prosecute her. It did not even initiate deportation proceedings for her” it instead “took direct steps to help the individuals who violated [the laws of the United States]” conduct for which “[a] private citizen would, and should, be prosecuted”. 

“In response to [Judge Hanen’s] inquiry about [its] policy in the [Nava-Martinez] case, the Government responded with a copy of the 1997 Flores v. Reno, … settlement agreement and a copy of a portion of the Homeland Security Act. No other explanation was offered,” he lamented, “no doubt because there is no explanation. The DHS has simply chosen not to enforce the United States’ border security laws.” There are further worthwhile quotes from the 10-page Order, which as a careerist Fed make me cringe with embarrassment, but I’ll move on after using this one: 

[T]here is nothing in [the Homeland Security] Act that directs and authorizes the DHS to turn a blind eye to criminal conduct, and certainly[,] nothing [] compels it to participate in and complete the mission of a criminal conspiracy or to encourage parents to put their minor children in perilous situations subject to the whims of evil individuals. These actions are both dangerous and unconscionable.”

That quote is an outstanding segue if I do say so myself as when it comes to crime, one of the most significant limitations isn’t resources to respond to it; it’s the speed with which criminals adapt to enforcement efforts. There’s probably no greater example than that of exploitation of catch-and-release from custody of Family Units driven in part by the FSA and lawsuits hamstringing the Obama and Trump administrations. While traditionally, inter-family relationships have been verified by DHS and/or HHS using custodial interviews after observation and review and verification of submitted documentation, the Trump administration alleged children were not only being smuggled but were actively being trafficked using fake documents to obtain release from custody then would return the child to their country of origin to be recycled by another “family” seeking to cross the border

Outlets like Buzzfeed would, in response, post articles with titles like “The Homeland Security Chief Says, Without Evidence, Children Are Being Recycled At The Border,” and in that particular case, attempt to refute statements from the then-Associate Chief of the Border Patrol’s Intelligence Operations about an ongoing investigation into such a ring, by quoting “a former” Senior Adviser from DHS’ Office for Civil Rights and Civil Liberties” who indicated “ICE and CBP have been making the claim since at least 2016”. (Ed. Remind me again, who was President in 2016?) Nevertheless, by 2019, the Trump administration would turn to DNA testing to try to weed-out fake families, but even that wouldn’t occur without controversy. The media was quick to fact-check public statements by administration officials like Ken Cuccinelli, then Acting-Director of U.S. Citizenship and Immigration Services, and TV appearances by politicians like Lindsay Grahamnesty… sorry, Graham, (it’s a force of habit like instinctively referring to Kevin McAleenan as “Kevin McOpen-borders”) over referencing DNA and a 30% rate of fraudulent families, noting the Associated Press having published a story in April where it quoted “ICE officials [as having] said they ha[d] identified 101 possible instances of fraudulent families since April 18 and determined one-third were fraudulent” and how “th[e] findings were based on traditional investigative methods like document screening, and happened before the DNA testing program went into effect.” I can’t and won’t speak for you, but hair-splitting aside, 33% of families being found to be fake is 34% too many for me, no matter how the scheme was discovered.

Having “initial[ly] proof of concept” validated use of DNA testing, ICE cited a 19% rate (16 identified fraudulent families from “84 family units who presented indicia of fraud) for “a 120-day extension of the pilot program and expansion to five additional locations along the southwest border to assess long-term implementation, starting late June [2019].” If I were going to be a total pedant, I would observe that meant between April 18 – May 10, 2019, 52% of families suspected of being fake were later confirmed to be through whatever means used, but hey, ORANGE MAN BAD, and we should totally #AbolishICE.

Just as finishing “the wall,” which is actually a fence, along the border with Mexico wouldn’t have been a panacea—I’m not speculating; I know from experience the fence was never intended to prevent 100% of illegal entries, one hundred percent of the time. Going back to the first sections built near San Diego, the fence has been part of a comprehensive strategy including sensors, lights, roads, etc., to deter and detect border violations, buying Agents time to respond. Just as with gaps in the fence, apid DNA testing has proven equally fallible.

During a January 2020 press conference in New York on ‘sanctuary jurisdictions’ in response to the NYPD declining a Detainer request for a Guyanese citizen unlawfully present in the U.S. arrested for assault who, after his release from jail, sexually assaulted and left a 92-year old woman for dead between two cars in the middle of the night, the Acting-ICE Director Matthew Albence recounted a case from “‘the [Rio Grande Valley] … where a woman presented herself or was arrested—[he couldn’t] remember which—with a two-month old. The officers and agents [] investigating that case [knew] something wasn’t right. They put them in for DNA testing. They did three or four tests, and the DNA test for the child kept coming back inconclusive. In fact, it kept coming back with two different strands of DNA, which isn’t humanly possible,’ Albance explained during the press conference.

‘You know what she was doing? The mother (Ed. this really should have sarcastic air quotes) was spitting into the child’s mouth to put her DNA into that child so they could be released as a family unit,’ he said.

Imperfect solutions for a worsening problem

Though the current child detention model is inarguably better than one subjecting children to dehumanizing and frankly unnecessary body cavity searches “after visiting with their attorneys or appearing [in court],” and better than the impoverished and often violent lives the children are fleeing, it’s not without faults. In February 2019, “[d]uring [a] House Judiciary Committee hearing titled ‘Oversight of the Trump Administration’s Family Separation Policy,’ [Representative] Ted Deutch (FL-22) released documents from the [] Department of Health and Human Services (HHS) exposing the extent of sexual assault cases of children in their custody” stating:

“These HHS documents detail a staggering number of sexual assaults on unaccompanied children in their custody … [and] an unsafe environment of sexual assaults by staff on unaccompanied minors. With the number of allegations each year roughly breaking down to one sexual assault per week for the last three years, clearly this [a]dministration is not equipped to keep these children safe inside their facilities. Congress and the public demand answers and a clearer understanding of how these allegations are being investigated and what is being done to protect these vulnerable children.”

Not surprisingly, the report was picked up by news outlets too numerous to name. There were two problems: firstly, just as with the supposedly “lost” children, it covered a period from 2015 – 2018. Secondly, while there were “allegations of sexual abuse by staff on minors,” the data shows that of 1,473 allegations reported to the Department of Justice, just 194 involved an adult, and some of those weren’t termed as “Staff-on-Minor” while 833 were explicitly listed as “UAC-on-UAC,” meaning that at 4:1, it revealed how the children were by-and-large, preying on each other. Any amount of sexual abuse of a child that exceeds none is wrong, and it’s bad enough that as of 2014, an estimated “80 percent of women and girls crossing into the U.S. by way of Mexico are raped during their journey.” I’m not suggesting that every UAC is, or will become a predator, à la Trump’s remark about ‘not sending their best’. But by the same token, I recognize those who are won’t likely be removed until after they’ve victimized someone and stand accused or convicted of it. Oh, and under another President, because this one, as promised on the campaign trail, won’t seek to remove aliens unless they “have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States,” were “apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020,” or had been “convicted of an ‘aggravated felony[]’… and are determined to pose a threat to public safety.

Deadlines, failed reform attempts, and a secret addendum

Hopefully, having made it this far, you had read at least Part II of this series, where I outline what the Flores Agreement says. If not, don’t worry; we’ll get through the rest of this section together. 

Paragraph 40 of the agreement deals with its termination. It states:

“All terms of this [a]greement shall terminate the earlier of five years after the date of final court approval [i.e., on or about January 17, 2002] … or three years [in 2000] after the court determines that the INS is in substantial compliance with [it], except that the INS shall continue to house the general population of minors in INS custody in facilities that are licensed for the care of dependent minors.”

Those deadlines came and went, and as Judge Hanen observed in 2013 in Nava-Martinez, “[t]here was [] no explanation [provided] why this settlement agreement-whose terms terminated five years after the date of final court approval-is still even effective.” I concede I don’t know why, well, I mean I do, but how is not as easy to explain. Over those first three years, the Executive made superficial efforts to meet and abide by the agreement’s requirements. Congress, perhaps unsurprisingly, made little effort to aid the INS in extricating itself from the untenable bargain.

On December 7, 2001, forty-one days before the agreement would have expired; Paragraph 40 was quietly modified to read: “Paragraph 40 of the Stipulation filed herein on January 17, 1997, is modified to read as follows:

“All terms of this [a]greement shall terminate the earlier of five years after the date of final court approval of this Agreement or three years after the court determines that the INS is in substantial compliance with this Agreement, 45 days following defendant’s publication of final regulations implementing this agreement [strikethrough] except that [end strikethrough] the INS shall continue to house the general population of minors in INS custody in facilities that are state-licensed for the care of dependent minors.”

In the eighteen years since the amendment, the only progress made towards satisfying the agreement has been Congress codifying parts of it in the TVPRA and in various statutes, which, when I put it that way, is not progress since the Executive is responsible for the creation of regulations. The Obama administration could have published regulations to fix the Flores problem, but instead, merely sought to have Congress update the TVPRA to eliminate the magnet the legislation had become by offering disparate and more favorable treatment children from non-contiguous countries receive when arriving to the U.S., whether unaccompanied or being smuggled. On the other hand, the Trump administration opted, albeit years too late, to try to satisfy the modified exit provision.

On August 23, 2019, the administration (DHS & HHS) published “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children” in the Federal Register. This was the follow-up to the September 7, 2018, notice of proposed rulemaking intended to solicit public comments for 60-days regarding amending the applicable regulations. “Th[e] final rule adopt[ed] the proposed rule, with some changes in response to comments[] [and] parallels the relevant and substantive terms of the Flores Settlement Agreement (FSA), with changes as are necessary to implement closely-related provisions of the Homeland Security Act of 2002 (HSA), … and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)”. Unsurprisingly, a “Flores” lawsuit was quickly filed, alleging the regulation:

  1. [Was] inconsistent with the underlying Flores settlement” in that “the [] new rule would grant the [DHS] the ability to detain children with their families for prolonged periods of time” when “the settlement stipulates to a ‘general policy favoring release’” and that “under the settlement, children can only be detained in facilities that are licensed by ‘an appropriate State agency’” though, in two decades, I don’t believe any of the facilities were.
  2. [C]ourts have ruled against deterrence as a justification for detention”.
  3. Failing to account for the high costs of the rule renders it arbitrary and capricious”. This is a standard claim under the Administrative Procedure Act, the law governing federal regulations’ implementation. The argument was that “DHS would incur drastic new costs—both to detain more families for longer than currently allowed under the law and to build or acquire new facilities to incarcerate these families. Over a decade, the annualized costs of the rule would range from at least $201 million to nearly $1.3 billion each year.” However, this claim seems to ignore HHS’s current costs, which already routinely exceed those figures.

 

By September 27, 2019, “the Court entered an Order granting Plaintiffs’ Motion to Enforce and denied Defendants’ Motion to Terminate the Flores Settlement Agreement.” In November, the administration appealed to the Ninth Circuit.

On December 29, 2020, the appellate Court ruled against the administration, finding that “[a]lthough … the majority of the HHS regulations may take effect,” “the remaining [ones] relating to accompanied minors depart from the [a]greement in two principal, related ways: (1) they limit the circumstances in which accompanied minors may be released, and (2) they provide for the detention of families together in facilities licensed not by states but by Immigration and Customs Enforcement itself.” 

“Because[,] the panel concluded[,] [] the differences between the regulations and the [a]greement [we]re substantial and affect the central protections afforded by the [a]greement, [it] rejected the government’s argument that [the FSA] terminated by its own terms” and that “[a]lthough the [a]greement contemplates termination upon the promulgation of consistent regulations, the panel explained it does not follow that the executive branch could bring about termination through the promulgation of inconsistent regulations.”

Finally, “the panel rejected the government’s argument that an unprecedented increase in family migration warrants termination of the [a]greement” reiterating that “[t]he government has three primary options when DHS encounters an accompanied minor: (1) release all family members, (2) detain the parent(s) or legal guardian(s) and release the minor to a parent or legal guardian, or transfer the minor to HHS as an unaccompanied minor, or (3) detain the family together at an appropriate family detention center. The panel observed that the government prefers the third option, but that the [a]greement flatly precludes that approach. The panel explained that, if the only problem were a lack of licensed facilities to hold accompanied minors, then modification of the [a]greement might be warranted, but the government sought a much more comprehensive change by jettisoning the [a] greement’s release mandate for accompanied minors except in narrow circumstances.”

So, in other words, the status quo continues even as the number of UACs and Family Units increases, inevitably resulting in mass catch-and-release because the current administration has no desire or intention to stem the tide.

Conclusion

If you’ve ever seen the 1990 movie Navy SEALs, paraphrasing Ronald Joseph’s character, Captain Dunne’s rebuking of Michael Biehn’s Lieutenant Curran, I’m an operator, not a policymaker, and over the years, I’ve gotten used to it. Despite significant knowledge of the issue and years of experience, I don’t claim to have all the answers to questions about what should happen, and anyway, I’m in no position to make it so. Still, just as I know that caging children isn’t the answer to the problem, neither is rewarding illegal aliens’ criminal conspiracies to unlawfully reunite with their minor children then reward both through amnesty for the latter, who, due to chain migration, are then able to reward their parents with legalized status. If that scenario sounds vaguely familiar to you, it should, as I just described issues similar to those of DACA recipients and the ‘through no fault of their own’ argument, which would make for a terrible deal.

As I said at the beginning of Part I, I believe this piece can be an essential part of discussions about the ongoing border crisis—and to be clear, based on my knowledge of and experience in immigration, I do think it is one. Despite quarterbacking by the pundit and political class, immigration isn’t simply a number game and damn sure not one that can be explained away by merely comparing the numbers of aliens apprehended or deemed inadmissible each year. Whether you started with this, Part IV, or ready any or all of the first three, I appreciate your time, and if you found the information I provided helpful, that you’ll consider sharing it.

 

~ HC

 

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One Response

  1. How did you learn all of this info on immigration? Your amount of knowledge is impressive. Great read!!

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