New litigation says family detention and "ice boxes" violate prior settlement on the treatment of kids in immigrant detention

Last week, counsel for plaintiffs in the Flores case filed a motion to enforce the Flores settlement in federal district court in Los Angeles.

The Flores settlement, reached in 1997, was the result of a class action lawsuit challenging the policies of the former Immigration and Nationalization Service (INS) of not releasing detained children to anyone except a parent or legal guardian and maintaining them in facilities that provided no recreation, education, or visitation and where they were intermixed with unrelated adults.

The settlement laid out the terms of how “all minors detained in the legal custody of  INS” (later applied to Immigration and Customs Enforcement, or ICE) should be treated. It states that ICE must release children to a qualified custodian “without unnecessary delay” and must take affirmative steps toward releasing minors in their care. It stated that children have the right to be released first to their parents. It also stipulates that the government must hold children in facilities licensed to care for dependent children, and that these facilities must be safe and sanitary.

ICE’s current no-release policy for immigrant mothers with children flagrantly violates the terms of this settlement.

The recently-filed motion argues that DHS is violating the Flores settlement by its no-release policy for children apprehended with their mothers at the border, by holding children in secure (lock-down) facilities that are not licensed to take care of dependent children, and by subjecting children to unduly harsh conditions in Customs and Border Protection (CBP) short term detention facilities near the border.

Specifically, this litigation challenges ICE’s unilateral invention of “deterrence,” an additional justification to detain children for long periods of time. According to the settlement, there are only two exceptions that would make it permissible to detain a minor for more than 72 hours: that the child is (1) demonstrably dangerous or (2) extraordinarily likely to abscond. In contrast, ICE’s no-release policy is enforced for all mothers and children in family detention, without regard to individual characteristics, so it clearly violates the terms of the Flores settlement.

The litigation also highlights that the Karnes and Dilley facilities, where children are currently being held, are "secure" facilities not licensed to care for dependent minors. GEO Group and Corrections Corporation of America, the private prison corporations that run the family detention facilities are experienced mainly in running secure prisons, rather than caring for refugee mothers and children. The Flores settlement, in contrast, mandates that minors be typically housed in “an open setting, such as a group home, and not in detention facilities.”

Finally, children are subjected to conditions that breach those laid out in the Flores settlement when initially held in Border Patrol facilities. The recent litigation notes that “reports of agonizing cold, overcrowding, and inadequate nutrition and hygiene are endemic” in these facilities. Children and their mothers must sleep in rooms with more than 100 other unrelated adults, which are kept at “ice box” temperatures. Children often have to use toilets that are visible to other detainees, and used toilet paper and sanitary napkins pile into corners. Children and mothers report that water is nearly undrinkable because it tastes strongly of chlorine bleach, and no milk or additional nutritional supplements are given for infants or breast-feeding mothers.

The first hearing on this motion is scheduled for March 9, 2015. You can read the entire memorandum in support of enforcing the Flores settlement by clicking here.