LOS ANGELES (CN) — A federal judge on Friday agreed to partially terminate the 1997 Flores agreement that shields underage migrants apprehended at the U.S. border from incarceration and sets strict standards for their housing.
U.S. District Judge Dolly Gee in Los Angeles granted in part the government's request to terminate the agreement only to the extent that it applies to the Department of Health and Human Services' obligations concerning the placement, care and services provided to so-called unaccompanied children.
The agreement stays in place with respect to the requirement that children should be released from the custody of U.S. Customs and Border Patrol within 72 hours.
The Biden administration last month asked the court to partially lift the rules, weeks after Health and Human Services published its own safeguards, called the Foundational Rule, which will go into effect July 1 and which Secretary Xavier Becerra said will set “clear standards for the care and treatment of unaccompanied (migrant) children.”
The Flores agreement requires that the unaccompanied minors — once they are put in the care of the Health and Human Service's Office of Refugee Resettlement — be placed in state-licensed facilities. That has become a problem, however, since Texas, Florida and South Carolina have stopped licensing facilities that house migrant children under contract with the federal government or don't allow those children to be place in state-licensed facilities.
Under the new Health and Human Services' Foundational Rule, children in states where licensed facilities are no longer available to them will be housed in programs that will still be required to adhere to the state’s licensing requirements, as they would be if state licensing were still available.
"Plaintiffs are understandably apprehensive that, without state licensure, there will be a lack of oversight of unlicensed facilities," the judge said, referring to the various legal aid groups who have been fighting to preserve the Flores agreement against challenges in recent years by the Trump administration.
"Here, unlike when the court denied defendants’ proposed substitutes for state licensing in the past, it is now 'unworkable' for defendants to fully comply with the FSA’s state licensing requirement, and defendants have presented an alternative that is more satisfactory than anything they had proposed in the past," Gee said.
An attorney representing the migrant children's interests in the litigation didn't immediately respond to a request for comment.
The judge didn't agree with the government, however, that Health and Human Services' modifications pertaining to secure, heightened supervision facilities and out-of-network placements were suitably tailored to the change in circumstances, because Texas’ and Florida’s executive orders don't impact the department's ability to comply with the relevant Flores agreements provisions in that regard.
Gee captured the national spotlight during the Trump administration's efforts to prevent migrants from Central America and other countries to enter the U.S. while overseeing the implementation of the Flores agreement that set strict limits on the detention of minors in the custody of U.S. immigration agencies.
In that capacity, Gee clashed with the Justice Department over the treatment of minors at detention facilities along the Mexican border where they weren't provided with proper meals and basic hygienic products like soap and toothpaste.
The judge appointed an independent monitor to inspect the detention facilities and report back to her on the conditions in which the children were housed — a decision that was upheld on appeal.
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