Legal Loophole or Vital Protection: Does Removing Safeguards for Migrant Children Go Too Far?

Victoria Grieshammer

Of the many controversies of Trump’s presidency, the separation of children from their parents during the immigration process may be one of the most acrimonious. Indeed, regardless of one’s politics, it is difficult to think of a more distasteful situation than one where parents and children are wrenched from each other by the government. This is made worse by the fact that this happens during such a stressful event as moving to a new country, especially when such moves are often the result of violence and poverty in one’s home country. The conditions in which the children are kept do not help to ease these harrowing events. These tent cities, as some have called them, do not provide schooling, books or mental health treatment, temperatures can reach up to 100 degrees, and children are there for months, uncertain of their futures.

The crisis has only gotten worse, as hundreds of children have been held in these tent cities for months. Specifically, more than 500 children have been in a tent city near Tornillo, Texas since August. Additionally, another 46 children have been held at that site since June. Aside from the clear abuse of human dignity as well as a public relations disaster, this also violates a two-decades-old court order on the length that minors can be detained. This 1997 court settlement—frequently called the Flores agreement—came out of the Supreme Court case Flores v. Reno. Perhaps unsurprisingly, the agreement originates from previous alleged mistreatment of migrant children by the former Immigration and Naturalization Service in the 1980s. Specifically, Jenny Flores, for whom the case is named, was detained at age 15 while crossing the border to live with her aunt. After being apprehended, the 15-year-old was arrested, placed in handcuffs, and strip-searched, all while her aunt was denied custody and Flores was kept in a juvenile detention center.

The Flores agreement requires U.S. authorities to move immigrant children out of the detention centers and into state-licensed shelters, or to parents or guardians, within 20 days. When the families are released together, they are often given GPS ankle bracelets to track their whereabouts until it is their time to go to court. As might be expected, Tornillo, the tent city in question, is not one of these state-licensed shelters. The difference between state-licensed shelters and those like Tornillo is in more than just their titles. Indeed, these state-licensed shelters have such important features as access to schooling and legal counsel. Accordingly, migrant children are being held in these facilities in violation of long-standing precedent that was erected to ensure their health and safety.

This single violation of the Flores agreement is the tip of the iceberg, though. In fact, the Trump administration is in the process of gutting the protections provided by the Flores agreement. Although Trump has stated that he will replace the rule with a similar one that ensures immigrant children are “treated with dignity, respect and special concern for their particular vulnerability,” it is currently unclear how this will look in actuality. To replace the families’ ability to leave the shelters, the administration asserts that it will build more humane shelters that will house migrants for longer. The administration’s reasoning for eliminating the so-called legal loophole is that the Flores agreement may have the effect of enticing immigrant families to come to the United States with the idea that their children will keep them from being held in detention centers for extended periods of time. This claim is unsubstantiated, though, and is even possibly refuted by data that shows that unauthorized Mexico border crossings have actually significantly declined since the Flores agreement. If the comments on this rule are any indication, the public does not approve. Whether the revising of the Flores settlement agreement will continue to protect migrant children or whether immigration services will continue to repeat mistakes of the past, though, is left to be seen.