Biden administration moves to terminate agreement governing conditions for migrant children in US custody

The Biden administration moved Friday to terminate a decades-old agreement that governs conditions for migrant children in government custody, according to a court filing, which argues that the settlement was meant to be temporary.

The 1997 Flores settlement, as the agreement is known, requires the government to release children from government custody without unnecessary delay to sponsors, like parents or adult relatives, and dictates conditions by which children are held. The Health and Human Services Department is charged with the care of unaccompanied migrant children.

The Biden administration has previously signaled that it planned to end the Flores agreement, instead preparing a federal regulation that, the administration argues, “faithfully implements” the requirements spelled out in the settlement, provides additional protections and responds to “unforeseen changed circumstances since 1997.” The regulation was published in late April.

“By its own terms the FSA was meant to be temporary. The parties initially agreed that the FSA would terminate no later than five years after final court approval and then later agreed that the FSA would terminate 45 days after the INS published final regulations implementing the FSA,” Friday’s court filing reads.

“The Rule is expansive and responsive to the changing needs of ORR’s (Unaccompanied Children) Program. ORR anticipates it will guide its operations and provide needed protections to unaccompanied children for years to come,” the filing adds, referring to the Office of Refugee Resettlement, an agency within HHS.

But immigration attorneys have expressed concern over the lack of outside oversight if the Flores settlement is terminated.

“If the government were to prevail in its motion, HHS would no longer be bound by the Flores settlement. As Flores counsel, we would no longer be able to interview children in HHS custody, or file motions to enforce when the rights guaranteed by Flores are denied to children in HHS custody,” said Neha Desai, senior director of immigration at the National Center for Youth Law.

This story has been updated with additional reporting.

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