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Flores Settlement News (May 23, 2022)

May 23, 2022 (5 min read)

Peter Schey reports: "After two years of negotiations, we have reached a settlement with the U.S. border patrol that for the first time sets detailed standards for the safe detention of immigrant children. We were assisted by pro bono co-counsel with Orrick and the Law Foundation of Silicon Valley, and invaluable medical expertise provided by Dr. Nancy E. Wang, Associate Director Pediatric Emergency Medicine at Stanford University School of Medicine and Dr. Marietta Vázquez, Associate Dean, Medical Student Diversity at Yale School of Medicine. The mediation was facilitated by Court-appointed Special Master Andrea Sheridan Ordin and Court-appointed medical monitor Dr. Paul H. Wise, Richard E. Behrman Professor of Child Health and Society and Professor of Pediatrics, Stanford University.

The 61-page agreement was reached two years after we challenged the conditions of children's detention in border patrol facilities in Texas where tens of thousands of minors were held during the Trump administration. A court filing on Saturday May 21, 2022, seeks U.S. Judge Dolly M. Gee's preliminary approval of the settlement. The border patrol has agreed to a wide range of protocols requiring that detained minors are held in safe and sanitary conditions, not be separated from relatives, and have access to medical evaluations and prompt medical treatment when needed.
The settlement requires that the border patrol treat minors in custody with "dignity, respect and special concern for their particular vulnerability as minors," and that it place each detained minor "in the least restrictive setting appropriate to the class member’s age and special needs." It also requires that except when operationally infeasible, minors apprehended with an adult family member “shall remain with that family member” during their time in border patrol custody. If a minor is temporarily separated from an accompanying relative they have the right to visitation with that relative while in border patrol custody. The Trump administration caused a public backlash when it separated thousands of children from their parents.
The agreement also requires that minors detained by the border patrol are granted access to showers, hygiene kits, age-appropriate meals, clothing, mattresses, and blankets. Border patrol facilities will be required to maintain a stock of clothing in a variety of sizes that can be distributed to detained minors. Parents detained with infants must be provided items such as swaddling blankets and diapers.
The agreement requires the appointment of an independent medical expert who will have access to border patrol facilities in the Rio Grande and El Paso sectors to monitor compliance with the terms of the new agreement. The agreement will remain in effect for two and half years during which time we will also have the right to enter border patrol facilities to interview detained minors and monitor compliance with the agreement. 
The settlement requires that border patrol agents be trained regarding the agreement’s terms and display a poster and show a video to minors describing their rights. It also requires that minors or their accompanying relatives be provided a list of local free legal services. 
We hope this settlement will bring an end to the appalling and sometimes deadly detention policies the Trump administration adopted against thousands of vulnerable immigrant children.
The lawsuit was originally filed in 1985 challenging the conditions in which immigrant minors were detained and the failure to release them promptly to relatives living in the U.S. After numerous appeals, the case was settled in 1997 in what became known as the Flores settlement, named after Jenny Lissette Flores, the original plaintiff in the 1985 lawsuit. 
The 1997 settlement set the national standards for the conditions of detention and prompt release of all immigrant children. It allows us to monitor compliance with the settlement’s terms by inspecting detention sites and petition the federal court when they believe the terms of the settlement are being violated. The Trump administration sought to end the settlement but was rebuffed by the lower court and the Court of Appeals in San Francisco.
In June 2019, we petitioned the federal court overseeing compliance with the 1997 settlement to hold the Trump administration in contempt for detaining thousands of children in what we alleged were overcrowded and unsanitary cages after separating them from their parents. During the Trump administration several children died while in federal custody. We argued the detention conditions were inhumane and violated the 1997 settlement’s requirement that children be held in facilities that are “safe and sanitary.” 
Los Angeles federal Judge Dolly M. Gee who was overseeing compliance with the 1997 settlement ordered the parties to meet in mediation to explore whether a new agreement could be reached setting standards that would ensure that conditions in border patrol facilities were “safe and sanitary.”   
Over the past two years, border patrol officials and their lawyers and medical experts met with us and we slowly made progress towards a comprehensive settlement defining the terms “safe and sanitary.” 
Because the children’s 2019 complaint focused on conditions in the Rio Grande and El Paso border patrol sectors where the vast majority of accompanied and unaccompanied minors are detained, the settlement is limited to those two border patrol sectors. The El Paso sector is comprised of eleven stations and covers the entire state of New Mexico as well as two counties in west Texas. The Rio Grande Valley Sector has nine stations and covers the entire over 320 river miles, 250 coastal miles and 19 counties equating to over 17,000 square miles.
The parties’ joint motion for preliminary approval of the settlement is available at this link. A copy of the parties’ settlement is available at this link. Exhibit 1 to settlement (poster) available at this link. Exhibits 2-4 to settlement available at this link. The parties proposed Class notice is available at this link.
We believe the settlement will be approved by the Court after the class notice is posted in border patrol facilities and class members have an opportunity to submit any objections they may have.
Please feel free to email me if you have any questions about the settlement.
ps: donations to support our direct services work with unaccompanied and at risk immigrant minors may be made here:
Peter A.Schey
Center for Human Rights and Constitutional Law