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Border & Immigration

Attorneys say Biden administration’s new safety standards for migrant children in custody not enough

Migrant children line up to enter a tent at the Homestead Temporary Shelter for Unaccompanied Children in Homestead, Fla. in February 2019.
Wilfredo Lee
Migrant children line up to enter a tent at the Homestead Temporary Shelter for Unaccompanied Children in Homestead, Fla. in February 2019.

Attorneys for migrant children who arrived to the United States on their own say the Biden administration’s new rules are not enough to ensure their safety while they are in U.S. custody and should not replace a decades-old agreement from a court settlement that requires court oversight.

Government attorneys at a federal court hearing in Los Angeles on Friday argued that the court oversight under the Flores agreement has outlived its purpose and new regulations are needed. Its attorneys said they would provide more details to the judge next Monday before she makes her ruling, including information on how they will ensure oversight of non-government facilities caring for children with acute needs.

The Biden administration last month asked the court to partially lift the rules, weeks after the U.S. Health and Human Services Department published its own safeguards, effective July 1, that Secretary Xavier Becerra said will set “clear standards for the care and treatment of unaccompanied (migrant) children.”


Currently advocates representing child migrants have broad authority to visit custody facilities and conduct interviews with staff and other migrants, and are allowed to register complaints with the court, which can order changes.

Leecia Welch, deputy litigation director at Children’s Rights, which represents children in the case, said the court oversight is needed now more than ever. Advocates say the Flores agreement has been instrumental in guaranteeing safe conditions for children, especially amid rising border detentions over the past two years that included nearly 300,000 unaccompanied minors.

“There comes a time where all settlement agreements need to end, but now is not that time,” Welch said.

The Justice Department did not immediately respond to a request for comment.

The 1997 agreement was the result of over a decade of litigation between attorneys representing the rights of migrant children and the U.S. government over widespread allegations of mistreatment in the 1980s.


The original lawsuit was filed on behalf of four teenagers including Jenny Lisette Flores, a 15-year-old from El Salvador. The lawsuit detailed how Flores and the other plaintiffs were held by the government for extended periods of time, often in facilities with unrelated adults, and did not receive education or proper medical treatment.

In 2014, a surge of unaccompanied children at the border brought heightened scrutiny of the federal government. Since then, arrests of children traveling alone at the Mexican border have increased, and last year topped 130,000.

The health department releases the vast majority of unaccompanied children to close relatives while immigration judges weigh their futures.

The Biden administration is asking the court to terminate the agreement with the department, which takes custody of unaccompanied children within 72 hours of arrest by the Border Patrol.

The agreement would still apply when the children are in the hands of the Border Patrol and its parent agency, the Department of Homeland Security, including a 20-day limit on holding unaccompanied children and parents traveling with a child. Border Patrol holding facilities have experienced extreme overcrowding as recently as 2021.

The health department says its new rules meet, and in some ways exceed, standards set forth in the court settlement.

Lawyers for child migrants disagree. They say the federal government has failed to develop a regulatory framework in states that revoked licenses of facilities caring for child migrants or may do so in the future.

They say the new rules also do not adequately address for facilities that care for children with more acute needs.

Texas and Florida — led by Republican governors who are critical of unprecedented migration flows — revoked licenses in 2021, leaving what advocates describe as a void in oversight that endangers child safety.