Detention of Immigrant Children amid a Global Pandemic: Jenny Flores’ America

I. THE FLORES SETTLEMENT AGREEMENT, 1997

In 1985, a 15-year-old girl named Jenny Lisette Flores fled violence and civil war in El Salvador to live with her aunt who resided near Los Angeles. ² Her journey of over 2500 miles was cut short; Jenny never made it to her aunt in Los Angeles. Instead, she was arrested by the United States Immigration and Naturalization Service (“INS”), handcuffed, strip searched, and thrown in a juvenile detention center. ³ Jenny was held in that detention center—which provided her with very few opportunities for education and recreation—for two months as she awaited a deportation hearing. ⁴ At the detention center, minors like Jenny shared sleeping quarters and bathrooms with unrelated adults of all genders. ⁵

Jenny had not been convicted of any crime, she was not a flight risk or a threat to the community, and she had a blood relative in the country who could care for her. ⁶ Still, INS refused to release her to her aunt. ⁷ After lawyers challenged the federal regulation forbidding the release of immigrant minors to third party adults unless an “unusual and extraordinary circumstance” existed, the district court ordered that Jenny be released on bond. ⁸ The district court also ordered INS to improve how the agency treated detained immigrant children. ⁹

Jenny’s case, Reno v. Flores, was decided by the Supreme Court in 1993 ¹⁰ —eight years after Jenny was initially detained. The opinion, authored by Justice Antonin Scalia, held that: 1) the regulation forbidding detained immigrant children from being released to blood relatives other than their parents does not facially violate notions of substantive due process, 2) INS procedures do not deny immigrant minors procedural due process, and 3) the regulation does not exceed the government’s discretion to set its own terms for the release of detained immigrant minors. ¹¹

Following Jenny’s case, activist groups around the country commenced a series of lawsuits against the federal government over its alleged mistreatment of immigrant children like Jenny in detention centers across the country. The lawsuits culminated in the Flores Settlement Agreement in 1997, signed by the Clinton Administration INS. ¹²

Under the Flores Settlement Agreement (“FSA” or “Agreement”), the United States Government agreed to release unaccompanied minors to their relatives, ensure that all immigrant juveniles in the government’s custody are treated with dignity, respect, and special concern for their vulnerability as minors, and set limits on how long the children could stay in detention. ¹³ The FSA still governs the detention and treatment of immigrant juveniles in government custody today. ¹⁴

Since 1997, federal judges have expanded upon the FSA; it is now widely interpreted that all minors in detention centers, whether unaccompanied or accompanied by their parents, cannot be held for more than twenty days. ¹⁵ The Agreement also obliges the Government to pursue a “general policy favoring release” of minors in custody, ¹⁶ and requires the Government to release children from detention centers without “unnecessary delay” to their parents or other adult relatives. ¹⁷

Fast-forward to March 2020: The FSA is seemingly up in the air, and to complicate matters further, the United States is grappling with a pandemic.

II. THE TRUMP ADMINISTRATION AND COVID-19 CONCERNS IN IMMIGRATION DETENTION CENTERS

In August 2019, the Trump Administration announced plans to end the FSA ¹⁸ after President Trump expressed concern about the number of undocumented children travelling into the United States. ¹⁹ About a month later, the United States District Court for the Central District of California denied the Government’s motion to terminate the agreement. ²⁰ The Government’s appeal of that order is now pending in the Ninth Circuit Court of Appeals. ²¹

Meanwhile, the first cases of COVID-19 in the United States were identified in travelers who flew into the country from Wuhan, China in January 2020. ²² The disease then quickly evolved from an isolated number of cases into a global pandemic in just two months. By February, the United States declared a public health emergency, and by March 11, the World Health Organization declared COVID-19 a pandemic. ²³ At the end of June, the global death toll surpassed 500,000, with twenty five percent of deaths originating from the United States alone. ²⁴ At that time, the number of global cases reached over 10,000,000. ²⁵

The rapidly spreading respiratory virus most commonly spreads from person-to-person contact, especially when people are physically close to each other. ²⁶ This factor has not stopped Immigration and Customs Enforcement (“ICE”) and the Office of Refugee Resettlement (“ORR”) from cramming undocumented immigrant children into detention centers.

The United States Customs and Border Protection Agency (“CBP”) does the initial processing of detained immigrants. The detained immigrants are then transferred to either ICE or the ORR. This transfer is supposed to happen within 48 hours, but the government alleges that it is impossible to work within this time frame because of the recent surge in immigration, and, consequently, arrests. ²⁷

ICE enforces the laws within the United States and is responsible for holding immigrant adults and unaccompanied minors arrested within the United States. ICE’s network is vast, and detainees are mostly held in privately run detention centers. ²⁸ ORR, on the other hand, specifically takes in detained children after they are processed by CBP. ORR usually contracts with licensed shelters, but because of the recent spike in immigration, ORR is holding children in large, unlicensed facilities. ²⁹

Doctors, members of the American Academy of Pediatrics, and lawyers have been concerned about the conditions of these facilities for months now, describing them as “overcrowded,” “unhygienic,” and “unsafe.” ³⁰ Minors, including infants, toddlers, and preschoolers, are sleeping on concrete floors; they are being given instant meals that lack nutritional value; many of them are sick; and they do not have adequate opportunities to shower. ³¹ Additionally, child psychiatrists are concerned that “[i]n addition to the already high risk for traumatic impact of parental separation, the coronavirus pandemic creates additional burdens and distress [in the detained children], exacerbated by fears about their own health and safety and that of parents and family members they have little or no contact with.” ³²

A pediatrician who visited the border processing center in McAllen, Texas described, “the conditions … could be compared to torture facilities.” ³³

III. FLORES V. BARR, 2020

In March 2020, the United States District Court for the Central District of California considered whether, amid the ongoing COVID-19 pandemic, ORR and ICE have adhered with the FSA. ³⁴ The court declined to order the Government to release minors en masse, citing travel restrictions, possible spread of the virus via public transportation, and “introducing healthy children to homes where they could be at a higher risk of infection.” ³⁵ Instead, the court reminded ORR and ICE of its obligation under the FSA to release minors “without unnecessary delay” ³⁶ and to “show cause why they should not be held to answer for unexplained delays in released eligible [children].” ³⁷ The court did express concern for migrant children, acknowledging their trauma and vulnerable position. Still, the opinion left much to be desired in terms of receiving immediate justice for the detained children.

In March 2020, plaintiffs—made up of a class of detained immigrant children—filed an ex parte application for a temporary restraining order and an order to show cause, arguing that defendants ORR and ICE must release or provide justification for retaining custody over the detained children. ³⁸ Plaintiffs also argued that ICE and ORR should implement the practices recommended by the CDC to avoid the spread of infection amid the COVID-19 pandemic. ³⁹ The court granted in part and denied in part the ex parte application. ⁴⁰

In early 2019, the CDC issued “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities” advising such facilities on how to prepare for, prevent, and manage the risk of COVID-19 and its transmission within detention centers. On March 19, 2020, ORR distributed this guidance to facilities (“ORR Guidance”). ⁴¹

The ORR Guidance required that the detention centers: (1) plan and coordinate with local health departments and hospitals, (2) enhance staff and visitor screening for COVID-19 symptoms or risk, (3) identify children most likely to be exposed, (4) isolate high-risk children and children with symptoms, and (5) release children from custody only once they had been medically cleared by a physician or ORR has been consulted. ⁴² ORR has since updated these guidelines. ⁴³

Plaintiffs argued that the pandemic response from ICE and ORR violates their contractual obligations under the FSA and asked the court to compel ORR and ICE to release the detained juveniles, record the reasons for not promptly releasing them, and properly implement the CDC's recommendations. ⁴⁴

The court found that ICE and ORR did not breach the FSA by failing to provide safe and sanitary conditions and appropriate medical care within the context of the COVID-19 pandemic. ⁴⁵

The FSA’s requirement for “safe and sanitary conditions” concerns an array of basic health and hygiene needs such as “soap, toothbrushes, regulated temperatures, and conditions in which [the juveniles] can sleep.” ⁴⁶ Plaintiffs argue that “safe and sanitary” conditions include protection from developing illnesses. ⁴⁷ COVID-19 can be transmitted rapidly in detention facilities, where social distancing is difficult at best and impossible at worst, medical resources are constrained, shared spaces are seldom sanitized properly, supplies like hand sanitizer and soap are not easily accessible to detainees, and people enter and exit frequently. ⁴⁸ These factors call for ICE and ORR to be in complete compliance with the CDC’s guidelines. ⁴⁹ Plaintiffs argue that ICE and ORR failed to provide adequate care to the detained juveniles across the country, breaching the FSA.

Additionally, immigrant children in detention centers are more likely to be separated from their families and have mental health concerns. The trauma of being subject to solitary quarantine—or simply not receiving enough information about the virus or the potential of being infected—can exacerbate already-existent mental health concerns. ⁵⁰

In response, ORR submitted evidence that the Chief Medical Officer of the CDC's National Center for Immunizations and Respiratory Diseases, who is also Deputy Incident Manager for the CDC COVID-19 response, approved of ORR's COVID-19 procedures as consistent with CDC guidelines for settings like detention settings. ⁵¹ Still, ORR failed to address recommendations related to personal protective equipment, personal hygiene, social distancing, and other concerns. ⁵²

The court found that ORR “appears to be in substantial compliance with its FSA obligations to implement CDC-compliant guidelines and to provide adequate routine medical care and adequate living accommodations.” ⁵³

Related, ICE only recently promulgated some CDC recommendations in its facilities. The court found that plaintiffs raised serious questions as to the merits of their claim that ICE was not compliant with its FSA obligations in the context of the COVID-19 outbreak. ⁵⁴ Thus, the court invoked its authority to require heightened inspections of ICE and ORR facilities to ensure the existence of safe and sanitary conditions. ⁵⁵

The second part of plaintiffs’ claim was that ICE and ORR breached the FSA by unnecessarily delaying the release of juvenile detainees and failing to record efforts towards the release.

In 2019, children in ORR custody remained in the agency's care for an average of sixty-six days. ⁵⁶ Plaintiffs argue that as the COVID-19 pandemic continues to be rampant in the United States, the courts must re-examine whether ORR’s custody of children in its facilities meets the FSA’s requirement that the children be released without unnecessary delay. ⁵⁷

On March 13, 2020, about two weeks before the present case was decided, ORR had 3,622 minors in custody. ⁵⁸ Of those children, 1,193 were in congregate settings after having been detained for thirty days or more. ⁵⁹ Importantly, the court found that ORR's failure to make an effort to release these children and record that effort “makes it more difficult to ascertain how many of the minors' releases to suitable custodians have been delayed without good reason.” ⁶⁰

ICE explained that its decisions to release juveniles depend on “various factors.” ⁶¹ But the Court reminded both ORR and ICE that holding minors in indefinite detention in unlicensed facilities is a breach of the FSA. ⁶²

In the end, the severity of the harm the detained immigrant children were exposed to amid a global pandemic is evident—especially their high probability of being exposed to the virus, and the likelihood that they would infect ICE and ORR staff, and overwhelm the local healthcare system. ⁶³

Still, the court agreed with ICE and ORR that “the interests of all parties and the public are not well served at this time by rushing to release minors en masse in the midst of the current travel restrictions or to release them to potentially unfit custodians based on limited information, particularly given the possibility of contagion via public transportation, or introducing healthy children to homes where they could be at a higher risk of infection.” ⁶⁴

In summary, the request for immediate release was denied, but the court still set a strict timeline for ICE and ORR to make concrete efforts to release detained children quickly and safely amid the pandemic. ORR and ICE must also report their efforts, including specific numbers of children in capacity to court-appointed Juvenile Coordinators, as well as updates on the status of implementation of COVID-19 CDC-compliant changes. The Juvenile Coordinators will also videotape the detention center conditions and report on whether protocols are being followed. ⁶⁵

The long-standing class action case continued as the court followed up with subsequent opinions and orders. About a month after the present case was decided, on April 24, 2020, Judge Dolly Gee looked at the case again and found that ORR and ICE were indeed in violation of the FSA for failure to release children with ongoing legal proceedings. Judge Gee wrote that “under the current extraordinary circumstances in the midst of a pandemic, ORR’s obligation to release minors without unnecessary delay requires moving with greater speed to remove minors from congregate environments.” ⁶⁶ On May 22, 2020, the court expressed more concern with ICE and ORR’s compliance and ordered enhanced monitoring and further status reports. ⁶⁷ Judge Gee stated that “[c]ontrary to the April 24, 2020 Order, ORR has not provisionally released any minors whose vetted sponsors are unable to obtain fingerprints due to pandemic-related closures.” ⁶⁸ The court granted the plaintiff class’ motion to enforce the FSA on September 4, 2020. ⁶⁹ Additional litigation is pending in this ongoing matter.

IV. NEXT STEPS: JUSTICE FOR JENNY FLORES

The March 2020 ruling shows concern for the plight of immigrant children, especially amid the threat of COVID-19 infection. The subsequent orders acknowledge the role ORR and ICE continue to play in the traumatization of generations of immigrant children, especially amid an already-worrisome pandemic with no clear end in sight. The ruling and the orders, however, do not ultimately grant the detained children safety or justice. Family separation and detention—no matter the conditions—is traumatic, and the effects are long-lasting. ⁷⁰

Carlos Holguín, the Los Angeles lawyer who fought for Jenny Flores in 1985, is still defending the case today—he’s before the Ninth Circuit Court of Appeals battling for immigrant children and to save the FSA. ⁷¹ In 2019, he said: “Had anyone ever asked, especially in 1985, that this battle is going to continue on, that the work you are doing now is going to have some impact for the benefit of children in 2019, I never would have predicted that.” ⁷²

The issue here is a moral one. ICE and ORR’s treatment of undocumented immigrants is inhumane. No child should be separated from their parent or guardian for extended amounts of time, made to sleep on the floor, and denied nutritional meals and regular showers. Even more, an agency that fails to adjust its regulations and mode of operation to be more humane during a deadly global pandemic has already failed as an agency.

As showcased by the long chain of Flores cases and orders, this is a back- and-forth issue. ICE and ORR misbehave, the courts step in, ICE and ORR misbehave again, the courts step in again—wash, rinse, repeat. This dysfunctional immigration system must be dismantled, and the government must pass comprehensive immigration reform that: 1) broadens the pathways and opportunities for immigrants to enter the country legally, 2) provides undocumented immigrants an accessible path to citizenship, and most importantly, 3) does not treat people—especially children—seeking refuge as criminals.

Ultimately, as long as ICE, ORR, and their inhumane detention centers exist, nothing much has changed since 1985. This is still Jenny Flores’ America.