Day 6

How a 35-year-old case of a migrant girl from El Salvador still fuels the border debate

In 1984 a teenage girl from El Salvador named Jenny Flores was detained trying to get into the United States. Lawyer Carlos Holguin took her case and won an agreement that established a baseline level of protections for migrant children detained in the U.S.

Jenny Flores' case led to new rules for the protection of migrant children

Attorneys Peter Schey, left, and Carlos Holguín, right, field questions from reporters outside the federal courthouse in Los Angeles on July 27, 2018. (The Associated Press)

by Jorge Barrera

It began with a phone call from a Hollywood actor to a Los Angeles lawyer about his maid whose daughter was detained by U.S. immigration authorities and held in a 1950s-era motel with a drained swimming pool, surrounded by razor wire. 

The daughter's name was Jenny Lisette Flores, 15. 

She was fleeing the civil war in El Salvador and became the lead plaintiff in a class action lawsuit filed in 1985 that would eventually set the minimum standards for the treatment of migrant children and youth in the custody of U.S. immigration authorities. 

Carlos Holguín, the Los Angeles lawyer who brought the case, is still defending it today.

He's currently before the U.S. Court of Appeals for the 9th Circuit, battling the Trump administration to preserve the baseline for the humane treatment of migrant children and youth fleeing the violence, chaos and poverty of large swaths of Central America. 

"Had anyone ever asked, especially in 1985, that this battle is going to continue on, that the work you are doing now is going to have some impact for the benefit of children in 2019, I never would have predicted that," said Holguín, who's with the Centre for Human Rights and Constitutional Law, in an interview with Day 6

"I am completely surprised, even to this day, that [the Flores settlement agreement] continues to be the main bulwark against the government running roughshod over the rights of these children."

The 1985 class action lawsuit filing from Carlos Holguín on behalf Jenny Lisette Flores that led to the Flores settlement agreement. (File)

The 30 year struggle

In the 1980s, there was little protection for girls like Jenny Lisette Flores facing violence caused by the very country she was seeking shelter in. 

Back then, U.S. immigration authorities would only release minors to their parents.

Holguín says the detained children would essentially be used as "bait" to capture undocumented parents. 

This was one of the things he set out to change when he launched the class action under Flores' name.

The class action was finally settled in 1997 in what is known as the Flores settlement agreement, which outlined basic guarantees to protect migrant minors who fall into the custody of U.S. immigration authorities. 

While successive U.S. administrations — both Democrat and Republican — have chafed under aspects of it over the years, the Trump Department of Justice is the first aiming to torpedo it.

This is the origin story behind the courtroom exchange, before the 9th Circuit appeals court, that spawned the video that recently went viral of Department of Justice lawyer Sarah Fabian arguing that providing toothbrushes, toothpaste and soap to children in the custody of U.S. authorities "may not be required" under the Flores settlement.

Fabien was arguing that the Flores settlement did not specifically itemize the things needed to meet the provision ensuring children were kept in "safe and sanitary conditions."

Two children pray along with a group from the United in Christ Ministry from Los Fresnos, Texas. The ministry brings dinner every Thursday to migrants waiting to request asylum in the U.S., at the Puerta Mexico international bridge in Matamoros, Tamaulipas state, Mexico, Thursday, June 27, 2019. (The Associated Press)

The Flores settlement basically outlines three basic guarantees for the treatment of migrant minors.

These include limiting the time children and youth spend in custody by allowing their release into the care of a qualified guardian; ensuring they are held in facilities licensed to care for dependent children; restricting the amount of time they spend in U.S. Border Patrol facilities — 72 hours — and ensuring their humane detention in the aftermath of an arrest.   

Holguín said the Trump administration wants to get rid of the protections outlined in the Flores settlement "by any means necessary."

It's expected the Trump administration will introduce new federal regulations on the treatment of migrant children sometime in September, he said. 

"We suspect the regulations are very likely to be inconsistent with the Flores settlement," said Holguín. 

Holguín said previous administrations "basically complied" with the Flores settlement. But no administration would fulfil a key part of the deal — turning the outlined guarantees into federal regulations. 

So, for the last 30 years, Holguín and lawyers with organizations like La Raza Centro Legal, and the Youth Law Centre, have repeatedly gone to the federal court to challenge the federal government's treatment of migrant minors under the Flores guarantees. 

Like a 'torture facility'

The docket for the Flores case with the U.S. Federal Court's California Western Division dates back to 1985. Throughout the years, Holguín and his colleagues have filed the experiences of children and youth in the custody of immigration authorities through numerous affidavits as evidence of non-compliance with the settlement.

One 16-year-old girl from Mexico detained by U.S. immigration authorities in September 2003 described being locked in a room, guarded by private security 24 hours a day, and deprived of water at a Best Western Hotel in Los Angeles.

A 14-year-old K'iche' Maya girl from Guatemala recounted how after she and her mother were apprehended in Texas in Dec. 2014, they were forced to sleep on the floor of a cold room where "everyone could see you when you used the bathroom." 

She also said a Border Patrol officer laughed at her mother when she asked for medication to help with "terrible" pain.

A bird takes off from atop a cross dedicated to migrants, on the banks of the Rio Grande, where many have lost their lives while trying to cross in Matamoros, Tamaulipas state, Mexico. (The Associated Press)

The stories grow harsher in filings from 2019.

A 16-year-old girl from San Miguel, El Salvador, fleeing targeted gang violence at home, described crossing the Rio Grande while grabbing tightly onto her 20-year-old fiancé who held their one year-old daughter above the waters.

She said border agents grabbed them two hours after they crossed and took her daughter's diapers, formula and "all our belongings."

They then separated her from her fiancé.

"I was crying, my fiancé was crying ... and they yelled at us," she said in the affidavit. 

Immigration authorities then transported her and her child to a facility in Clint, Texas, and placed them with 45 other youth and children in a room with only 10 bunk beds. She was forced to sleep for a time with her baby on the cement floor, two blankets spread beneath them and two blankets for warmth.  

She went six days without soap, a shower or brushing her teeth, she said, in the affidavit.

This speaks to our inability as human beings to project the consequences of our actions today on the generations that will follow- Carlos Holguín, human rights lawyer

"The conditions within which they are held could be compared to torture facilities," Dr. Dolly Lucio Sevier, a pediatrician from Bronsville, Texas, who visited the Urusal Border Processing Centre in McAllen, Texas, wrote in a court filing. 

Sevier met 39 detainees, most of them teen mothers and their children, who had been in the centre between four and 24 days — far beyond the 72 hours outlined in the Flores settlement, according to the June 18 filing.

"I think the levels of frustration within the personnel of the border patrol grow and there may be some amount of burnout there," said Holguin. 

"And the result is they end up neglecting the children, not worrying if they have a clean change of clothes, whether they are bathed, [or] whether they have toothbrushes."

'The law of unintended consequences'

Holguín no longer knows whether Jenny Lisette Flores remained in the U.S. or went back to El Salvador. The Hollywood actor who phoned him — reportedly Ed Asner, now 89 — also no longer remembers even making the call, according to his publicist. 

The Cold War proxy wars between the U.S. and the Soviet Union plunged Flores' home country into civil war and drove her to the U.S.

Reverberations from that time still run beneath the layers of chaos and conflict in the region, said Holguín.

In this May 25, 2006 file photo, thirty days after crossing into Mexico, Honduran migrants watch from the Mexican side of the Rio Grande as others take a bath as they wait for a good moment to cross the river into the U.S., from the border city of Nuevo Laredo, Mexico. (The Associated Press)

Harvest failures associated with climate change — coupled with rampant gang violence, weak governments and the now evolving face-off between the U.S. and China in Central America — are all playing a role in the current crisis at the border, he added.

"The law of unintended consequences to these foreign policy decisions and calculations often result in unintended consequences, such as we are seeing now," he said.

"Fundamentally, this speaks to our inability as human beings to project the consequences of our actions today on the generations that will follow, 10, 20, 30 years from now."

To hear the full interview with Carlos Holguín, download our podcast or click 'Listen' above.