AG Becerra Denounces Trump Administration Rule Allowing Prolonged Detention of Children

SACRAMENTO, Aug. 21, 2019 – California Attorney General Xavier Becerra today denounced the Trump Administration’s new final rule, which reportedly will be published on Friday. The rule would bypass the Flores Settlement Agreement, which has governed the treatment of children in immigration custody since 1997. The Trump Administration’s rule is expected to eliminate several critical protections guaranteed by the Flores Settlement Agreement and would cause irreparable harm to children, their families, and the California communities that accept them upon their release from federal immigration custody.

“Children don’t become subhuman because they are migrants. All children are God’s children, our children, and America should never treat them otherwise,” said Attorney General Becerra. “Yet, the Trump Administration is about to take America down that dark road stripping protections that spare children from the trauma and harm caused by unlawful, cruel, and prolonged detention. We are prepared to defend the human rights of children and the values and integrity of the United States of America.”

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In November 2018, Attorney General Becerra led a coalition of 18 attorneys general in submitting a comment letter to the U.S. Department of Homeland Security and the U.S. Department of Health and Human Services expressing significant concern with the proposed rule and urging the agencies to reconsider. In the letter, the Attorneys General:

  • Noted how the proposed rule removes important protections guaranteed by the Flores Settlement Agreement, including the presumption that all children are eligible for release into the community;
  • Described constitutional due process concerns with the prolonged detention of children;
  • Cited evidence to rebut the Administration’s claim that detention is a deterrent to immigration;
  • Highlighted how the rule undermines state licensing of children’s residential placements, which is a fundamental police power traditionally reserved to the states; and
  • Discussed the severe and lasting harm children suffer when subjected to detention.

Background:

The Flores Settlement Agreement stems from a class action lawsuit filed before the U.S. District Court for the Central District of California in 1985 in response to substandard conditions of confinement for unaccompanied immigrant children. The lawsuit sought to establish standards for how the federal government should handle the detention of minors, including plaintiff Jenny Lisette Flores. In particular, the plaintiffs expressed significant concerns about the use of strip searches, forcing children to share living quarters and bathrooms with adults of the opposite sex, and that minors could not be released to non-guardian relatives, leading to prolonged and cruel detention of children. Following litigation that moved through the U.S. Ninth Circuit Court of Appeals and the U.S. Supreme Court, the federal government eventually reached a settlement with class counsel in 1997 resulting, among other things, in:

  • Release of children “without unnecessary delay” to their parents, legal guardians, other adult relatives, another individual designated by the parents/guardians, or a licensed program willing to accept legal custody;
  • Placing children in the “least restrictive setting” appropriate to the minor’s age and special needs; and
  • Establishment of standards for safe and sanitary conditions of confinement for children in immigration detention.