In 1997, the administration of former President George W. Bush entered into a settlement agreement to address the problems that caused a lawsuit against Immigration and Customs Enforcement (“ICE”). The “Flores Agreement” of 1997 became law when most of the provisions were included in Federal regulations. The “Flores Agreement” and regulations required that ICE officials detaining unaccompanied children (“UAC”) who entered the US without a parent or guardian provide 1) food and drinking water, 2) medical assistance in emergencies, 3) toilets and sinks, 4) adequate temperature control and ventilation, 5) adequate supervision to protect minors from others, and 6) separation from unrelated adults whenever possible.

An UAC is defined as anyone under the age of 18 years at time of arrest by ICE who 1) does not have lawful status (either entered illegally or remained in the US longer than their visa permitted), 2) who did not have a parent or guardian with them at the time of arrest, 3) who did not have a parent or guardian in close proximity to place of arrest to provide immediate care, and 4) who does not have a parent or guardian in the US who can care for them immediately after the arrest.

In 2002, when ICE was facing claims that they were not treating UAC properly, Congress passed the Homeland Security Act of 2002, which divided the responsibilities of handling UAC between ICE and the Department of Health and Human Services’ (“HHS”) Office of Refugee Resettlement (“ORR”). The ORR was the agency under the 2002 law assigned responsibility for coordinating and implementing the care and placement of UAC in appropriate custody, reunifying UAC with their parents abroad if appropriate, maintaining and publishing a list of legal services available to UAC, and collecting statistical information on UAC, among other responsibilities.

Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 to address continuing complaints about treatment of UAC and failures to ensure that those UAC who would not be safe if returned to their native country were placed in removal proceedings so that a claim for protection under the law could be heard by the Immigration Court. This law also demands that the UAC be placed in the least restrictive setting that is in the best interests of the UAC. Often, it was deemed that a UAC should be released to the care of a family member or a friend of the family who resided in the US.

Currently, ICE is tearing families apart at the border with Mexico in order to enforce a “zero tolerance” policy on illegal entrance into the US, as well as criminally prosecuting the parents of any children as if they were smugglers. There is nothing to indicate that the parents of children who flee from their native countries to the US are intent on criminal activity once they enter the US nor that they are smuggling their children into the US for nefarious purposes such as slave labor or sex trafficking. However, since early 2017, ICE has put parents into federal prisons awaiting criminal prosecution and sent their children (including infants who are still being breastfed) to detention facilities closer to the US border with Canada. There is no effort being made to locate family members or friends who reside in the US to care for these children who have been designated as UAC because their parents are in ICE criminal detention. In May 2018, several reports have surfaced indicating that there are approximately 1,500 children who were detained in 2017 and cannot be located. The tone of the current administration is that these children, who are all under the age of 18 years and some of whom are infants, are potential criminals. Who cares about locating potential criminals until after they have committed a crime?

This decrease in moral authority is an abomination and should be addressed publicly, with strident calls for action to locate these missing children and a plan of action to prevent such losses in the future. Ripping families apart is not the act of a nation steeped in democracy and the rule of law.

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Linda Dominguez, Esquire
Linda A. Dominguez is the founder of L A Dominguez Law, which opened its doors in March 2006. The focus of the firm is on immigration law and LGBTQ issues. Linda has been practicing law since November 1989 and spent more than 16 years as a federal prosecutor. She is licensed in Maryland, Pennsylvania, as well as being admitted to the U.S. Supreme Court, U.S. Courts of Appeals for the 3rd, 4th, and 7th Circuits, and the U.S. District Court for the District of Maryland. Linda has one precedent decision issued by the Fourth Circuit Court of Appeals, Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014), on an asylum case from El Salvador.