Today, Explained - "Safe and sanitary"

Episode Date: June 26, 2019

The Senate passed $4.6 billion in emergency aid for the crisis at the southwestern border today. Last night, the House passed its own version. Aid will help, but for lasting change Congress will have to deal with Flores. Learn more about your ad choices. Visit podcastchoices.com/adchoices

The situation at the United States' southern border can feel like some kind of paralysis. Almost everyone seems to agree it's appalling, it's a crisis, but it still isn't getting fixed. But sometimes a shocking detail can sort of break the paralysis. Last year, we heard a kid crying for his mother in a detention center, and as a result, there was action. Last week, a group of lawyers was allowed into a Border Patrol station in Clint, Texas. After news about what they saw started trickling out, so did the news that the acting head of U.S. Customs and Border Protection was resigning.

Last night, the House passed a $4.5 billion emergency border aid bill to help ease the crisis. Earlier today, the Senate passed its own version. Both parties, both bodies agree that something must be done. Elora Mokerji was one of those lawyers who went to Clint. She's the director of the Immigration Rights Clinic at Columbia Law School, and I asked her about what she saw. Clint is a facility designed to hold adults, just over 100 of them. And when we showed up there on the morning of June 17th, we learned that there were more than 350 children

in the custody of Customs and Border Protection. They told us they were scared. They told us they hadn't had an opportunity to make a phone call since crossing the border for many of them. They didn't know where their family members and loved ones were. They were hungry and dirty. They can't sleep at night very well. They are waking up with hunger pangs. They're waking up because it's so cold. Many of them are sleeping on concrete floors. They don't have access to sufficient mats. Children are sharing mats when they are available. And in the few holding cells where it seems like there are bunk beds, the children don't want to sleep on the bunk beds by and large because it is so cold and it's warmer down on the

cement floor and they try to huddle together to stay warm. What are they being fed? Every day, every child gets a tray with instant oatmeal and a granola bar and a juice packet for breakfast. Every day for lunch, the children get a small cup of instant noodles. Multiple children told me it's the kind that you can cook in three minutes by adding water and another juice packet and another cookie or granola bar. And for dinner, they're being given small frozen bean burritos, again with a juice packet. There are no snacks available at the facility. There are no fresh fruits, no vegetables, no milk. What were the conditions like as far as you could tell? It was filthy and disgusting. Children hadn't showered and bathed in weeks. They were wearing had opportunities to brush their teeth since crossing the border.

There's not even soap for the children to wash their hands with. And as a result, there was a flu epidemic in the facility, with many children getting sick. They knew you were coming, right? The Customs and Border Patrol officials at this facility? Absolutely. The government had three weeks' notice that we planned to go to Clint. The officials on the ground running the facility knew a week in advance that we were coming, and they tried to dress up the facility for us. Some of the children reported that they were allowed to make phone calls for the first time last week. Some of the children reported that they were given a toothbrush for the first time last week. But the

facility that we saw was degrading and inhumane and unlike anything I have seen in my 12 years of representing children and families in federal immigration custody. Do we know where these kids' parents are? Some of the children cross the border with their parents and with other adult family members. Every child who we spoke with at Clint crossed the border with a family member age 18 or older, whether it be a parent, a sibling, an aunt, a grandmother. But the children have no idea when they will be released from federal immigration custody. They don't know how to get themselves out. And the parents and other family members in the United States don't know how to get their children back. Did you get any sense from the agents you spoke with how they could let this happen to children there?

You know, usually when I visit detention facilities, I try to strike up a conversation with the guards. I try to make allies on the inside who can look out for my clients and for those who may be particularly vulnerable in detention. That wasn't possible at Clint because the guards were consistently working in teams and at least pairs. So it was very difficult to have those honest conversations with the guards there about how they were doing. We saw guards dressed in full uniforms with weapons around their waists. We saw guards wearing face masks to protect themselves from presumably the influenza outbreak and the other contagious viruses that are spreading throughout the facility. And many of the children have been moved to another facility in El Paso, where my colleagues also interviewed children last week. But those children reported not having access to toothbrushes or

showers until my colleagues began their interviews. It seems like this might continue to happen whether kids stay at this facility in Clintz or not. Is it legal? Absolutely not. The Flores Settlement Agreement from 1997 requires that children be kept in safe and sanitary conditions and that the children are released from federal immigration custody as expeditiously as possible. Nearly all of the provisions of the Flores Settlement Agreement are being violated by this administration in Clint and possibly at other CBP facilities along the border.

We've had some very bad court decisions. The Flores decision is a disaster, I have to tell you. Judge Flores, whoever you may be, that decision is a disaster for our country. A disaster. Daryl Lind, Vox, we've talked about the Flores Agreement in our prior conversations on the show. And from those conversations, I'm pretty sure Flores isn't a judge. Who is she? So Jenny Lizette Flores was an immigrant from El Salvador. She was 15 years old when she crossed into the U.S. without papers.

And so she was arrested by U.S. officials and detained. And this is back in the 80s. She was coming to join her mother, but her mother was an unauthorized immigrant. And so she was worried that if she went to go pick up her daughter, that she herself would be arrested. So instead, she sent another relative who was a U.S, that she herself would be arrested. So instead, she sent another relative who was a U.S. citizen thinking that would be safer. But the border officials refused to release Jenny to anybody but a parent or legal guardian. So instead, she was held in detention with adults of both genders. She had to use the same bathroom and shower facilities as all of them. She was strip searched routinely. And so, you know, because all of this was

happening to a 15-year-old girl, the Center for Human Rights and Constitutional Law filed a lawsuit. What's the timeline of the lawsuit? So the lawsuit's initially filed in 1985. And in 1997, the government comes to an agreement. People under the age of 18 shouldn't be in immigration custody for any longer than they needed to be, that they should, while they were there, be in the least restrictive conditions possible, and that those conditions should be safe and sanitary and properly licensed by whatever state agency was licensing other child welfare facilities, and that they should be released to the nearest responsible adult to them. So like if there was a parent in the U.S., then that.

Otherwise, a close relative, a family friend with all due speed so that they weren't kind of languishing in the care of health and human services professionals either. So if the Flores Agreement passes in the late 90s and says you got to keep kids in sanitary conditions, don't keep them for too long, Why are those exact things happening right now? When something becomes an actual violation of the Flores Agreement is a really big question. That's something that literally has been litigated on and off for the past, like, 22 years. The ruling by U.S. District Judge Dolly G gives the Obama administration 90 days

to either release the more than 2,000 women and children being held in two Texas prisons or to show just cause to continue holding them. The Trump administration, like the Obama administration before it, has dealt with this huge change in migration that wasn't the case in 1997 when Flores initially got signed. That has, in large part, meant that there are tons more children coming over, both unaccompan that they were supposed to be in the least restrictive conditions or in safe and sanitary conditions. There has been a whole lot of questioning from attorneys and human rights advocates about like the conditions that you're throwing these children into because you don't have the resources to do better for them or because

you weren't like anticipating thousands of children coming in. You know, if you don't have a toothbrush, if you don't have soap, if you don't have a blanket, it's not safe and sanitary. Wouldn't everybody agree to that? Well, I think it's, I think those are, there's fair reason to find that those things may be part of safe and sanitary. No, maybe are. Is that really the best you can do under Flores? Or are you to the point of violating this agreement that you need to do the best possible by these kids? So at the end of the day, what does the Trump administration want to do with Flores? Do they want to get rid of it? Do they want to redefine it?

The Flores agreement was not supposed to still be in effect in 2019. It was envisioned as kind of a band-aid, right? The Congress would pass a law that would codify this stuff as statute or the executive branch would codify a regulation. Is that why it's kind of vague? It's definitely a lot of it. One of the current legal fronts is whether the judicial side of this should get more specific and should like start requiring things like we're going to define toothbrushes as being part of a safe and sanitary environment. Or we're going to define a number of days that is the maximum amount of time a child can be detained. Right. In general, on immigration, they've just kind of like, you know, muddled through with

Flores rather than supplanting it with something else. But the Trump administration is actually moving forward with a regulation that would kind of undo the changes made to Flores under Obama and would say families can be detained together in immigration detention for like up to 100 days. It would get rid of licensing requirements for facilities. But while they're waiting on that to get finalized because it got gajillions of public comments, they're trying to fight the challenges of their current practices like the stuff that the team saw last week in Clint. That was an investigation that was happening as part of the ongoing, is the government complying with its Flores obligations? The lawyers had heard they might not be in some Texas facilities.

And so they, you know, did a bunch of tours and checked it out. The question is, is this just a resources problem? And are they actually acting in good faith? Or are they trying to punish children because they are trying to send a message to other migrants or simply out of cruelty? Like on the DHS side, it's very easy to look at what's going on and say, yeah, it does seem really, really hard to spin up facilities that can adequately care for thousands of kids in a couple of weeks or months. But it's hard to look at the Trump DOJ telling judges, we don't think that you need to define safe and sanitary as requiring kids to have toothbrushes when we know that there are these accounts that toothbrushes are in extremely short supply. Congress is now trying to send billions of dollars of humanitarian aid to the border.

Can it pass an updated Flores Agreement that's actually law, too? Can Congress fix this? Yes. And as a matter of fact, there are some things in both the Senate and House versions of the current border supplemental bill that would codify some of this stuff, not toothbrushes level of detail. But that goes both ways, right? Like it's also possible for Congress to pass a bill that would like have lower standards than the way that Flores has been interpreted right now. But because that would be a congressionally passed law, that would supersede Flores.

And so Republicans for a while now have been saying that like families aren't counted as kids under Flores so that families can be detained for a longer time. And like that would absolutely count as Congress stepping in and doing its job and filling the gap. It just wouldn't be in a way that like advocates want. Are there other barriers to Congress making any sort of headway here? The point of the Flores settlement was to allow the government to keep kids in custody while it looked for sponsors and like to have that not be as bad as the conditions in immigration detention. There are definitely some on the left who have decided that there is not really a distinction between the two anymore. Whether there is such a thing as a humane way for children to be in immigration custody. It's not about the way that Flores is being interpreted. It's a totally different take on that question because it's a lot more skeptical of the idea

that you can regulate your way into humane treatment of kids. And in the meantime, while the president and Congress and the judiciary try to figure this out, what's going to happen to these kids? Eventually, kids are getting taken from Border Patrol custody to HHS, where facilities, as far as we know, are doing a better job of being compliant with Flores, although they're totally booked. Like, they just don't have the capacity, and that's causing a lot of the backup. The shelter in Clint, like, earlier this week, they first said, oh, we're going to shutter that facility.

We're moving the kids elsewhere, replacing a bunch of them with HHS. The rest are going to other Border Patrol facilities. And then they said, OK, we're going to move 100 more kids in there. It's this whole kind of archipelago of facilities that they're just improvisationally trying to keep open and kids are being sent from one to another in the hopes that ultimately some HHS bed will open up, which it does eventually. The question is, what are kids having to go through before then? And at what point does that constitute the kind of violation of rights that Flores was meant to prevent? Daryl Lind is the co-host of the Weeds podcast. You can hear her and two of our Vox colleagues talk about the administration's intentions at the border on their latest episode. I'm Sean Ramos-Firm. This is Today Explained. Thank you.