US judge partially terminates 1997 settlement agreement for migrant children

An attorney for unaccompanied minors who cross the U.S.-Mexico border without legal permission said Tuesday she has not decided whether to appeal a ruling by a Los Angeles federal judge to partially terminate a 1997 settlement agreement that governed the treatment of migrant children.

The statement follows a ruling last month by U.S. District Judge Dolly M. Gee, an appointee of President Barack Obama, that ends, at least for now, a requirement that the Department of Health and Human Services follow the decades-old agreement because a new regulation that went into effect July 1 provides adequate safeguards.

The judge cited the loss of 60% of the federal government's bed capacity due to decisions in 2021 by the governors of Texas and Florida not to license child-care programs that serve unaccompanied children in federal custody and said a workable option was needed. She wrote the government defendants "have adequately shown that applying the [Flores Settlement Agreement, or FSA] prospectively is no longer equitable as to HHS so long as they can provide a reasonable alternative framework ... that is consistent with the spirit of the FSA."

Gee's order added a caveat allowing attorneys for the migrant children to ask that the settlement agreement be restored. "The Court also retains jurisdiction to modify the Agreement or this Order should further changed circumstances necessitate, to ensure that the Rule faithfully implements the [Flores Settlement Agreement] as the parties originally contemplated," the judge wrote. Flores v. Garland, 85-CV-04544 (C.D. Cal., filed July 11, 1985).

The judge also ruled the Flores settlement agreement "remains in full force and effect as to the Department of Homeland Security, including the U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement."

Unaccompanied minors are in DHS custody during the first three days after they are taken into custody, and then they are transferred to the Office of Refugee Resettlement, or ORR.

The Biden administration filed a motion in May asking that much of the agreement be terminated after HHS published an Unaccompanied Children Program Foundational Rule, which it said was a replacement for requirements under Flores that migrant children be placed in state-licensed programs with some exceptions.

The rule was drafted, Department of Justice attorney Fizza Batool wrote, because of "unforeseen changed circumstances" prompted by the decisions of Texas Gov. Greg Abbott and Florida Gov. Ron DeSantis. More than half of the available beds for unaccompanied migrant children were in Texas.

Mishan R. Wroe, an attorney with the National Center for Youth Law in Oakland who represents plaintiffs, said the ORR's new rule is not an adequate replacement for state-licensed facilities and argued in court papers that the federal government was asking Gee "to sanction HHS's unrestricted use of unlicensed facilities."

In a phone interview Tuesday, Wroe said she and other plaintiffs' attorneys had not decided whether to challenge Gee's decision at the 9th U.S. Circuit Court of Appeals. The federal government could challenge parts of the judge's decision as well, but the Justice Department could not be reached for comment.

"We remain profoundly concerned for the safety of children in ORR custody because the Government's regulations do not require oversight equivalent to state licensing," she said. "That said, we will continue to use every tool at our disposal to ensure all children in government custody are safe."