Shocking Update in Immigration Policy: Biden Targets Vulnerable Children

Mohammad Bash /
Mohammad Bash /

The Biden administration is gearing up to put a partial end to the 27-year-old court oversight of how the government handles unaccompanied child migrants and safeguards them against abuse. Apparently, they now have their own list of safeguards and think they can handle it without the court’s help. Because, you know, who needs accountability when you’ve got a plan?

They’re asking a federal judge to terminate the Flores Settlement Agreement at the Health and Human Services Department while keeping it in place for the Border Patrol and Homeland Security. The move has immigration advocates raising eyebrows and wondering if the administration is serious about protecting these vulnerable kids, especially with border crossings hitting record highs.

According to Leecia Welch, Deputy Litigation Director at Children’s Rights, the Justice Department will petition a federal judge to end the Flores Settlement Agreement at the Department of Health and Human Services (HHS), which currently assumes responsibility for unaccompanied minors within 72 hours of their Border Patrol detention. The agreement will still apply to the Border Patrol, as well as the Department of Homeland Security, which oversees it. This will result in a “piecemeal” dismantling, according to Welch. Advocates for unaccompanied children will contest this action.

The Flores Settlement Agreement, signed in 1997, was in response to allegations of child mistreatment.  The agreement mentioned here resulted from the Flores v. Garland case, co-counseled by the National Center for Youth Law. As per the agreement, migrant children must be released immediately to their family, a child welfare program, or an adult seeking custody if family reunification is not possible.

The agreement also prohibits placing vulnerable children in EISes unless there are extraordinary circumstances. It sets standards for care in licensed shelters, including but not limited to adequate food, water, medical services, and living conditions. The Flores Settlement Agreement plays a crucial role in maintaining the safety and well-being of migrant children.

This initiative could further complicate President Biden’s already strained relationship with immigration advocates, particularly amid an unprecedented surge in border crossings during an election year. Arrests at the border have exceeded two million annually over the last two budget years, with nearly 300,000 involving unaccompanied minors.

With Republicans breathing down his neck over border management, Biden’s crew is suddenly all about tough love. They are rolling out rules that could slam the door on asylum claims faster. Biden’s new rules could reject more asylum claims at preliminary screenings, possibly setting the stage for a more extensive border crackdown.

The proposed change to the Flores Settlement Agreement arrives just weeks after HHS issued a rule setting new standards for the care and custody of unaccompanied migrant children, effective from July 1. Secretary Xavier Becerra states this rule establishes “clear standards” for their treatment.

Welch expressed concerns that terminating special oversight could prevent child advocates from accessing HHS facilities for inspections and interviews with the children, a practice they have maintained to ensure compliance.

While the proposed termination would remove certain oversight functions from HHS, it would retain critical aspects of the Flores settlement under the Homeland Security Department, including a 20-day limit for holding children and families in Border Patrol facilities, which have seen severe overcrowding.

Since the dissolution of the U.S. Immigration and Naturalization Service in 2003, HHS has been responsible for the custody of unaccompanied minors post-arrest. The need for effective oversight became starkly apparent during the Trump administration’s 2018 policy of separating children from their parents at the border, which highlighted systemic issues in tracking and reunification due to unlinked computer systems.

Recent years have seen continued high numbers of unaccompanied children at the border, with arrests topping 130,000 last year. HHS generally releases most of these children to relatives while their legal cases are considered.

In 2020, an appellate court allowed the Trump administration to end the Flores requirement for HHS but upheld it for Homeland Security, though the changes were never implemented.

Following public feedback on a proposal that garnered over 70,000 comments, HHS released a final rule last month claiming to enhance and expand upon the Flores provisions, including setting up an independent ombudsman’s office and formalizing standards for emergency shelters and legal services.

However, the new rule fails to address critical concerns regarding unlicensed shelters, a significant component of the Flores agreement, which came under scrutiny when Texas Governor Greg Abbott withdrew state licenses from facilities caring for migrant children in 2021.