Separation of families at the border has been a big part of the news of late. According to the Department of Homeland Security, last Spring 2,342 children had been separated from their parents after crossing the Southern U.S. border. However, according to a report issued on January 17, 2019 by the inspector general for the Department of Health and Human Services, it was revealed that the administration separated thousands more migrant children from their parents at the U.S. border than has previously been made public. The report estimates that thousands of other youngsters were separated months before the government announced it would separate children in order to criminally prosecute their parents, through late last Spring. Previous administrations also separated minors from adults at the border in some instances, usually when it was suspected the child was smuggled, or the parent appeared to be unfit. The report documents a sharp increase in separations under the current administration.
Once separated from their parents, significant challenges face the U.S. government trying to re-unite them. Many parents had been deported or were not given any information about where their children would go, according to the Texas Civil Rights Project’s conversations with detained adults. As a result, children were in custody for more than 20 days in violation of the 1997 Flores Settlement Agreement.[1}

The Flores Settlement Agreement arose out of Flores v. Reno, a 1987 California case that went all the way to the United States Supreme Court. The parties reached a settlement ten years after the case initially arose. The Settlement outlined standards for detention and release of unaccompanied minors taken into immigration custody. It imposes several obligations on the immigration authorities, which fall into three broad categories:

• The government is required to release children from immigration detention without unnecessary delay in order of preference beginning with parents and including other adult relatives as well as licensed programs willing to accept custody, within three to five days of apprehension. Under extenuating circumstances where the government faces an “emergency” or “influx” of minors, a de minimis extension of the transfer period of up to 20 days may be allowed. But the government must act in good faith and with due diligence to screen the family release.
• With respect to children for whom a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.
• The government is required to implement standards relating to the care and treatment of children in immigration detention.

In September 2018, the current administration proposed regulations that seek to terminate the Flores Settlement Agreement’s legal safeguards for children, including the provision that children must be transferred to a non-secure, licensed facility within three to five days of apprehension.[2} The proposed regulations include a number of policies which, if implemented, would allow the government to incarcerate more families for even longer periods of time. Many organizations and agencies oppose the proposed rule as it will eliminate any time limitation on incarceration by eliminating the requirement that family detention centers be licensed by an appropriate state agency. Instead it would allow DHS to self-license its own facilities, eliminating certain child safety and welfare standards for family detention centers; and further limit release options for children incarcerated in family detention who have not yet passed a credible fear interview. The agencies will decide whether to proceed with the final rule after reviewing the comments submitted.

Another issue children face after release from immigration custody is the lack of legal representation in immigration court. There is no Sixth Amendment right to counsel in immigration proceedings. Congress has recognized instead that the right is among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals who are the subject of removal proceedings. As a result, it has been determined that immigrants have the right to be represented by counsel at their own expense under the Fifth Amendment. Section 292 of the Immigration and Nationality Act generally governs an alien’s right to counsel. Many children have appeared at court without counsel as they are unable to find representation. Judges are going forward with the hearings regardless of the children’s lack of competency to stand trial. Pending litigation attempting to force the government to provide counsel for children appearing in Immigration Court has not yet been decided. Meanwhile, many non-profits, such as Legal Services for Children are struggling to take as many cases as they can to defend children in immigration proceedings. The majority of those children fled their home countries after experiencing violence or threats of violence. The lack of counsel diminishes their chance to win their asylum claims and increases the chance they will be returned to the country in which they faced the danger.

The current immigration climate has brought into the open the many deficiencies of the immigration process, highlighting the urgent need for reform of the entire process and most particularly how we deal with the vulnerable children.

Erika Portillo is a partner at Guichard, Teng, Portillo & Garrett, with offices in Walnut Creek and San Francisco. She practices immigration law exclusively and is fluent in English and Spanish.

[1} The Flores settlement can be found at: https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_settlement011797.pdf

[2} The proposed regulations can be found at: https://www.federalregister.gov/documents/2018/09/07/2018-19052/apprehension-processing-care-and-custody-of-alien-minors-and-unaccompanied-alien-children

Photo published with permission from Linda Freedman and Non-Profit Immigration Advocates. Visit the website and support their work! www.ics-law.org