Introduction

According to the original Flores complaint, on May 1st 1985, Ana Martinez Portillo, a minor and a plaintiff in the case of Reno v. Flores in 1993, was forced to strip and subjected to a search of her vagina and rectum when in a detainment facility. Issues at the border like this one seem to have been resolved with the Flores Agreement which established that children are meant to be released into non-secure facilities that are licensed to care for dependent children without necessary delay. However, this is not the case. In a recent compilation of interviews done by Human Rights Watch in 2019 to children held in these detention facilities, they revealed conditions violating the Flores Agreement at the border. Minors were being detained for weeks without access to showers, soap, toothbrushes. The treatment of minors at the border was meant to be improved and regulated by Flores but it is clear that this is not the case and these are children who need to be protected. The treatment of minors at the border has evolved over time as different presidents have edited or tried to edit the Flores agreement. This paper is going to analyze how the changes in popular and executive branch attitudes towards illegal immigration has changed the treatment of the Flores precedent and its impact on minors during the Obama and Trump presidencies. I am going to begin by looking at Immigration before Flores and what was the reasoning behind bringing the case to court. Then I am going to look at the case itself and the agreement made as a solution. From there, I am going to analyze the Obama and Trump presidencies and the impacts their policies had on the treatment of minors. As well as, how the popular opinions shaped both of these time periods. Lastly, I will look at how these policies have affected the current treatment received at the border of the United States and what can be done to remedy some of the violations of Flores.

Jenny Lisette Flores crossed the US border on May 16th, 1985 at age fifteen, escaping the civil war ravaging her home, El Salvador. Upon crossing the US-Mexico border she was detained by the Immigration and Naturalization Services for being deportable under 8 USC 1252 (a) (2) and was set a bail of $2,000.00. She was then brought to a detainment facility in Pasadena, California where she wasn’t given any educational instruction, reading materials, adequate recreational activities, or medical examinations. Flores couldn’t afford to pay the bail and on June 10th 1985 an Immigration judge lowered the bond to $1,500.00 with the condition that her parents or legal guardian personally have to appear before INS (Immigration and Nationality Services) to be subject to an interrogation before being given physical custody of their child. Flores’ mother was in the United States illegally and fearing being deported back to a brutal civil war she didn’t go take custody of Flores back, leaving Flores in an indefinite detention. Even though Flores had family members legally in the United States wanting to take Flores in.

Just like Flores various other minors faced conditions that did not comply with the right to education, privacy, family unit, and more. These minors, Dominga Hernadez-Hernandez, Alma Yanira Cruz-Aldama, and Ana Maria Martinez Portillo, filed along with Flores in the case. All four girls were arrested crossing the US-Mexico border looking for salvation from the civil war in El Salvador. They were all arrested for violating 8 USC 1252 (a) (2) for entering the US without submitting to an inspection by an INS officer. They were all placed on bail and the condition of being released to a legal guardian or parent which at the time was the policy in the United States. All four girls remained indefinitely incarcerated in conditions which denied them an education, recreation, and visitors who weren’t their attorneys.

The condition of being released to a parent or legal guardian failed as a safeguarding measure. Parents were frightened with the idea of deportation after crossing despite wanting their children back and keeping them safe and other parents like those of Hernandez simply weren’t in the US. These conditions resulted in indefinite detention for minors who for simply looking for a salvation were left in detainment facilities without education, recreation, and family. These are not conditions for a child to be raised in and this had to change. This is why for various violations the Reno v. Flores’ case was brought to court in 1987. More specifically for violations of the Immigration and Nationality Act 8 USC sections 1101 et seq., due process, and the equal protection clause of the fifth amendment. As well as the violation of the 1967 protocol relating to the status of refugees which was ratified by the United States on November 1st, 1968.

The case went on for 6 years through the US District Court for the Central District of California to the Ninth Circuit of Appeals until it reached the Supreme Court of the United States and a decision was made. With a 7 to 2 decision the court decided essentially that what was going on was constitutionally correct. The decision concluded that the regulation did not deprive anyone of due process, that the claim was too novel to be ranked as a fundamental right, and that any remaining constitutional doubts are eliminated by the fact that almost all of the respondents are aliens and thus are subject to being deported. This was the court’s majority decision and final ruling but the two Justices that dissented, Justice Stevens and Justice Blackmun, provided a different perspective on the issue. They believed that the decision made violated the Juvenile Justice and Delinquency Program Act which prefers the release of a minor when a responsible party is available instead of detention, they also believed that the conditions in these facilities weren’t apt and that should be further investigated. Overall, the conclusion was that these facilities were apt to hold children for indefinite amounts of time. However, we have to remember that the only thing the court can rule on is the constitutionality of the case. If there are any violations to the constitutions and the case was about aliens and their treatment which the court found to have no constitutional violations.

Despite this being constitutionally right, the treatment of these children is still unjust, and the government recognized that. Due to this, the US government under the Clinton Administration decided to come to the Flores Agreement in 1997 with the ACLU (American Civil Liberties Union) who brought the case to court on behalf of Jenny Flores. This agreement was separate to the decision by the Supreme Court. This agreement outlined policies in order to safeguard and protect minors detained at the border to improve and fix issues brought up by the Reno v. Flores case. The agreement mandates that INS can release a child to a parent, legal guardian, adult relative, or a licensed program. When in custody under INS or a licensed program they are required to place a minor in the least restrictive settings which means providing drinking water and food, safe and sanitary facilities, contact with family members, and providing a notice of rights. As well, under Flores, children may not be detained for more than 20 days.

While the court decision did not change much, the government’s ability to recognize the issue and come to the agreement allowed for the protection of many rights of alien minors crossing the United States each year. This settlement upheld the rights of these children and ensured safer environments. Nonetheless, the conditions in this settlement have not been as revered by the following administrations. This has been especially true within the last 17 years with Obama and Trump. These two presidents have very different perspectives on economic, political, social, and other issues affecting the United States being from two different parties Obama being a Democrat and Trump being a Republican. However, both of them seeked to change the Flores settlement and that affected the lives of children just like Jenny Flores looking for a refuge.

When Obama entered office in 2009- he already had immigration issues to deal with handed down to him by his predecessors. The Flores Agreement made the government place minors in facilities instead of keeping them detained and while the system had the opportunity to uphold the conditions in the Flores Agreement to protect detainees, it didn’t. This is clear in the lawsuit against ICE which was brought to the courts by the ACLU, the National Immigration Center, and a private firm who were suing for the mistreatment of immigrants detained at a Los Angeles detention center called B-18. The detained immigrants were being held in conditions well below any standard set, they were being detained in a cell with 50 other people, slept on the floor, held for 20 hours or more, had no soap or drinking water, one or two exposed toilets, and women were ignored in their request for menstruation products. These conditions are not apt for any human being, no one should be held in these conditions when all they came looking for was for safety. Instead, they are met with conditions like these.

This case was brought up in early 2009, when Obama took office and despite it not being directly a result of his policies it was the first opportunity to see how the Obama administration would approach the issue of immigration. The Obama administration decided to defend the rights of immigrants especially in this case and explained its wish to have all immigration detention facilities to be operated in a clean, safe, and constitutional manner. This mission was upheld for the majority of his presidency, where he advocated for the rights of immigrants and stopped systems currently violating the Flores Agreement. Such as closing the Hutto Residential Center in Texas which the Bush administration opened in 2006 which ran with tight schedules, only gave children one hour of schooling a day, didn’t provide enough food for children, and separated them from their parents in order to discipline them.

However, once the huge influx of immigrants arrived in 2014, Obama’s policies took a shift, focusing on the deterrence and detention of immigrants crossing the border. During the spring and summer of 2014, tens of thousands of unaccompanied children and women coming from Central America crossed the border into the US seeking asylum. Consequently, the Obama administration implemented an aggressive deterrence strategy and opening of makeshift detention centers.

The deterrence strategy consisted of media campaigns and the support of new measures. The media campaigns focused on emphasizing the consequences and risks associated with illegal immigration to the US. As well, the Department of Homeland Security increased detentions of women and children instead of releasing them on bond. Then, the government also supported the implementation of increased immigration enforcement measures which are highlighted in the Southern Border Program created by the Mexican government.

With tens of thousands of women and unaccompanied minors crossing the border Obama’s administration had to act fast to control the influx due to pressure from the public and administrations. The need to control the issue and the calls of the public for quick action resulted in the Obama administration reopened facilities and utilized those already in place. However, these facilities violated the Flores Agreement. For example, in the Artesia facility there were eight people sleeping in a single room and there was little exercise or stimulation provided for children, children were not eating due to unfamiliar food leaving them starved. In fact, an attorney named Mary O’Leary reported " trying to talk to one client about her case, and just a few feet away at another table there was this lady with a toddler between 2 and 4 years old, just lying limp. This was a sick kid, and just with this horrible racking cough." (Lind, 2015). Artesia wasn’t the only facility with these conditions, at the Berks County Residential Center a three year old child was only offered water as a medical treatment for throwing up for three days straight. Only after the child began throwing up blood that they finally provided medical attention. In the Karnes facility, a mother who was taking care of herself and her child at the facility reported “I didn’t feel alive in that place.” (Lind, 2015) after a suicide attempt with a broken ID badge. After the attempt her and her child were deported. These conditions are dehumanizing and left these minors and mothers without proper care, education, or facilities apt to hold anyone.

Then on July 24th 2015, after months of these inacceptable conditions at the border, the case Jenny L. Flores, et al. v. Jeh Johnson, et al. was presented by the ACLU for the violation of the Flores Agreement. The plaintiff was arguing that ICE (the defendant) violated the Flores Agreement through their policy of detaining all female-headed families for an indefinite period of time until it was determined whether they are entitled to remain in the country. This included children, and so the Flores Agreement was applicable. However, the US Government under Obama believed that the policy they were currently enforcing was necessary and just. Therefore, on February 27th, 2015 they filed a motion to amend the Flores Agreement. They wanted to amend the agreement in four ways. Firstly, they wished to eliminate or modify the sections of the agreement that were superseded or that are inconsistent with the Homeland Security act and the Trafficking Victims Protection Reauthorization Act. More specifically, they wished to modify Section VI which discussed the policy favoring release. Secondly, they wished for clarification that the preference for release to a legal parent or guardian was not applicable if the minor was accompanied by a guardian or parent. They argued that if the amendment remained as it did that the enforcement of this provision would lead to family separation. Thirdly, they wanted clarification on if state licensing requirements for housing minors applied to family residential facilities. Lastly, they wanted to amend the ongoing reporting requirements in the agreement and instead remove some of the current obligations while creating new requirements related to the inspection of the family residential facilities.

The ruling on this case was made by Judge Dolly Gee who was a federal district court judge in California and appointed by President Obama. The final ruling was that the Defendants’ no-release policy was a violation of the agreement and the court granted the Plaintiffs’ motion to enforce the Agreement and denied the motion to amend the agreement by the Defendant. In this case Judge Dolly Gee expanded the Flores Agreement to also protect accompanied children at the border. Her action protected the lives of children at the border as now despite arriving with or without a guardian, the Flores Agreement set standards at the border to protect their rights. The Judge also took the statement “with unnecessary delay” in the Flores Agreement to mean 20 days.
President Obama had begun his time in office positively supporting the cause of the protection of the rights, education, and safety of children at the border, with shutting down detention centers and messages of support. Nonetheless, when the 2014 immigration crisis hit the United States the call for action by the government officials, the public, and others led to the change in how the protection of these rights were going to be viewed by the Obama administration. However, he did not remain without criticism as organizations like the ACLU spoke against the actions taken at the border. For example, the ACLU on August 10th in 2015 stated that “It is long past time for President Obama to recognize these families for who they are: moms and kids fleeing persecution who have a right to apply for refugee status in the United States.” and that “If the Obama administration truly respects due process and human rights, it must end family detention now.”(“President Obama Wants to Continue Imprisoning Immigrant Families | ACLU,” 2015). So, despite starting off valuing the protections offered in the Flores Agreement the president’s attitude changed as time changed and as what the popular opinion believed.

In the 2016 elections immigration was a key point of discussion. The approaches of both candidates were widely different. One on hand, Trump repeatedly proclaimed that the immigrants crossing the border were rapists, criminals, and drug-runners and stated that he will build a wall on the border funded by Mexico to keep immigrants out. On the other hand, Clinton proclaimed that immigration is a family issue and that immigrants are a key part of America’s social fabric. Both of these approaches were very different but a significant amount of the public favored Trump’s perspective on the issue as he was elected the next president of the United States.

With these statements made during the campaign it’s no surprise that when Trump took office he implemented some policies that not only worsened the treatment of minors at the border but he also advocated for the dissolution of the Flores Agreement. Trump implemented two key policies which drastically affected the treatment of minors at the border.

The first policy was the Zero-Tolerance Policy in 2018. This policy applied to illegal immigrants to the US and it states that anyone caught crossing the border illegally would be prosecuted for illegal entry without exceptions. This included those seeking asylum and with children. Thus, when parents were arrested their children were treated as unaccompanied minors. Essentially, forcing the separation of children from their families. These children once separated were referred to the Unaccompanied Alien Children Program which provided care and protection for minors. This program was established in 2003, and from then till 2011 only less than 8,000 children per year were in the program. However, only in 2018 with Trump in office and the Zero-Tolerance Policy 49,100 children were directed to the program (Diab, 2024). This rate kept increasing as time went on.

The second policy was the Migrant Protection Protocols in 2019. This policy states that immigrants crossing the border irregularly or without proper documentation will be returned to Mexico for the rest of the proceedings. Not only that but Mexico was responsible for providing humanitarian aid for these immigrants that are sent back. While for many of the president’s voters these policies may seem reasonable it’s important to look at the consequences of this policy. To begin with, not all of the immigrants crossing the border are from Mexico and so sending them back to a foreign country where they have no family, no home, nothing does not make sense. Then, you’ll probably say well Mexico is meant to be providing them humanitarian support. Well, many of these immigrants caught at the border were being sent to cities in Mexico that had shortages of shelter and aid. As well, once in Mexico it became increasingly difficult to communicate with legal counsel and the immigrants when in Mexico received threats of extortion, kidnaping, and other violence.

Both of these policies were presented by the Trump administration as solutions to the issues at the border. However, his policies resulted in the separation of thousands of children from their families and families seeking asylum and safety from the violence in their home countries sent to Mexico where there wasn’t sufficient care for them.

Not only did Trump’s policies harm the lives of minors at the border but his request for the abolition of the Flores Agreement posed a major threat to the security of minors. In 2018 the Department of Homeland Security and the Department of Health and Human Services proposed a set of regulations that would essentially abolish the Flores Agreement believing that these regulations would restore what they called the integrity of their immigration system. These regulations created a new set of minimum standards for detention facilities and hold families in detention centers for an indefinite amount of time. Judge Dolly Gee who oversees the Flores Agreement rejected the requests to modify the agreement and the federal courts continued to rule against these regulations as they violate the Flores Agreement.

The other side of this issue is that despite the Flores Agreement being protected by the judicial system, minors at detention facilities were receiving inhumane treatment. In reported by the DHS’s independent watchdog that children were in standing cells, there was overcrowding, children were only given wet wipes to clean themselves, and sometimes the centers only had gym mats and immigrants were held inside by chain linked fences. They also reported immigrants who did not have access to fresh water and were forced to drink from toilets. In addition, when immigrants refused to return to their cells Border Patrol let the special operations team use force to get them back into their cells. These conditions are not safe nor just for the minors. Despite support by some of the public and Trump’s administration, various organizations spoke out for change in the conditions minors were being held at the border. One of these organizations was Human Rights Watch who in July 11th 2019 addressed the US House committee on the issue. In their address they discussed the upholding of the rights outlined in the Flores Agreement and the conditions minors were currently being held. They explained that the Flores Agreement requires the government to house minors in centers that are “safe and sanitary” as well as provide “access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, [and] adequate temperature control and ventilation.”. Human Rights Watch went on to explain how they saw the violation of these conditions in the current detention centers. They described the centers being “jail-like border facilities” in which children were given “access to showers only once or twice in a period of weeks, if at all”, and “not given regular access to soap or toothbrushes” (“Written Testimony: ‘Kids in Cages: Inhumane Treatment at the Border,’” 2019). In addition, they described children being detained in cages.

Children were drinking from toilets, put in cages, were not given access to showers or soap, and all this while being separated from their families. Like Human Rights Watch explains, this is not what the Flores Agreement outlines, nor does it uphold any rights the children have. While not citizens of the United States these children are humans and they have rights; rights to not be held in such conditions.

Conclusion

To conclude, this paper analyzed how changes in popular and executive branch attitudes towards illegal immigration changed the treatment of the Flores precedent. The establishment of the Flores Agreement in 1997 set standards for detention centers for children on the border as well as limiting the number of days a child can be detained. These standards are necessary measures at the border to uphold basic human rights of these minors. However, as we have seen, the policies and the attitudes towards the protection of the rights of minors changes often with influxes of immigrants changing Obama’s perspective and then the public’s perception as well of what regulations they want at the border. Even though the changes in attitudes are inevitable, it is important to maintain the protection of the rights of minors at the border. We are dealing with the lives of children and as we can see each policy affects their lives greatly. Despite the lack of academic sources and information in general regarding the discussion of the impact of Trump and Obama’s policies, and the Flores agreement it is undeniable that policies affect these minors and so do the attitudes of the public and the executive branch. This is why it is imperative to ensure the enforcement of the conditions outlined in the Flores Agreement in order for minors to be housed in sanitary and safe conditions as well as kept with their families.

Author Biography

Sylvia Barrios Gotor is a student passionate for advocacy of the protection of Latino children’s rights within their own countries and when immigrating. She is currently competing her last year of highschool at Singapore American School. Sylvia is an advocate for issues of immigration and human rights looking to pursue a career in International Humanitarian Law. She is actively involved in her school community with being an officer of the school’s Mock Trial club as well as President of ECHO, a service club dedicated to protecting the right of education for Hispanic children in South America. In her spare time Sylvia enjoys traveling, reading, and playing tennis with her friends.