Last week, lawyers visiting detained children in a Border Patrol station in Clint, Texas, discovered filthy and overcrowded conditions. They told the New York Times that children were sleeping on concrete floors under bright lights; toddlers were wearing urine- and mucus-stained clothes; and some children had gone weeks with no toothbrushes, soap, or showers.
That same week, comments one of the Trump administration's lawyers made in front of a federal court went viral. Sarah Fabian, the senior attorney in the Department of Justice's Office of Immigration Litigation, argued that the sorts conditions children were experiencing in Customs and Border Protection custody in Clint were perfectly legal. Federal statute requires that detained children be kept in "safe and sanitary" conditions, but Fabian argued that "safe and sanitary" is a vague requirement, and does not specifically enumerate things like soap or toothpaste. (The government eventually transferred most of the children out of the facility.)
What does existing law say about how the government must treat detained immigrant children? And is it really so vague as to allow the government to deny a child something as basic as a toothbrush?
What Are the Rights of Children in Detention?
The most important legal protection for immigrant children in detention stems from Flores v. Reno, a Supreme Court case settled in 1997.
Flores bears the name of Jenny Lisette Flores, a woman who fled El Salvador's brutal civil war in 1985 and was detained in the United States for two months when she was 15 years old. Flores was held in a detention facility with adults and was repeatedly strip-searched. Human rights lawyers in Los Angeles sued the federal government on Flores' behalf, and, after more than a decade of ligation, they arrived at the 1997 settlement, which established the rights of minors in immigration detention for the first time.
But the protections the settlement agreement created were extremely basic. "The Flores settlement talks about ensuring that kids have drinkable water. When you read the history of the case, and see what kids were not getting, it's absolutely insane," says Jennifer Podkul, the senior director of policy and advocacy for Kids in Need of Defense, a non-profit that seeks to protect unaccompanied children in the U.S. immigration system.
Along with ensuring that detained children have access to the most basic of amenities—for instance, "toilets and sinks, drinking water and food as appropriate, medical assistance"—the settlement also established "minimum standards" for detention facilities. According to the text of the settlement, the facilities have to adhere to all applicable child welfare laws in the state where they're located, and provide "[p]roper physical care and maintenance, including suitable living accommodations, food, appropriate clothing, and personal grooming items."
Podkul says the federal government has tried to evade the Flores requirements in two ways. First is the issue of semantics: Like Fabian, other government attorneys have argued that phrases like "proper physical care" are ambiguous and open to interpretation. The other issue: A provision in Flores holds that some standards can become more flexible "in the event of an emergency or influx of minors into the United States." But what counts as an influx?
"Remember, this was agreed to over 20 years ago, when the numbers were just so different. So we've basically been running in an 'influx' for many, many years now," Podkul explains. She says that this has created a "loophole" in the minimum standards that the federal government can exploit.
The Flores agreement is far from settled law. The court case is still being argued and adjusted, and the original counsels have made the argument that the minimum standards should still apply during an "influx" situation.
In fact, the ongoing, living nature of Flores explains why attorneys visited the Clint facility last week: They were investigating to ensure the CBP facility was up to the standards agreed to in the settlement. After seeing the conditions children were living in, some of the lawyers on the trip have argued that the government is failing to comply with the basic child welfare standards outlined in Flores.
Is the Government Breaking the Law?
According to the Trafficking Victims Protection Reauthorization Act—a bill signed into law by President George W. Bush in 2008—children cannot be held by CBP for more than 72 hours. After those three days, they must be transferred to the custody of the Office of Refugee Resettlement, the division of the Department of Health and Human Services in charge of unaccompanied children. While CBP detention facilities are built for the short-term holding of adults, ORR runs shelters specially designed for children (and the agency can also place children with sponsors in the U.S.).
The government is currently in clear violation of that law: In recent years, children have regularly been kept in CBP detention for longer than 72 hours. The law does introduce some latitude during "extraordinary circumstances," but the length of time children have spent in CBP detention has extended much longer than just a few days over the limit. For instance, some of the children in Clint had been in CBP detention for three weeks.
Most of the scrutiny and litigation about child detention has focused on the agencies in whose custody children have, in the past, spent most of their time: ORR and Immigration and Customs Enforcement. In response to the legal scrutiny, these agencies are currently better equipped to deal with children than CBP. Though they do not have perfect records, ORR and ICE have employed specific staff and have built policies around the welfare of children. CBP has lagged behind.
"One thing that we've been talking to [CBP] for years about is—in situations when they do have vulnerable populations for long periods of time—they need to be hiring the adequate professionals to work in the facilities that are going to be holding these kids," Podkul says. "If they really are stuck, and ORR can't come and take a kid, why are they having line agents who have no experience dealing with children change diapers? Why are they not hiring child welfare professionals, or ensuring they have pediatric medical professionals?"
Podkul argues that Congress has given CBP the latitude to make those sorts of hires, but the agency has not shown the "will" do to so.