AUDIE CORNISH, HOST:
It's still far from clear how President Trump's executive order ending family separations is being carried out. As the order itself acknowledges, detaining families together instead of separately requires changes to a decades-old settlement called the Flores agreement. Among other things, the agreement limits the amount of time children can be held in federal detention to 20 days. Yesterday, the Department of Justice asked federal judge Dolly Gee to modify the agreement, and it's not the first time she's been asked to do so.
MARY LOUISE KELLY, HOST:
Now, we're going to get to all of that. But first, let's go back to the 1980s when this started, back to the days of the Immigration and Naturalization Service, back to the days when far fewer people were crossing the U.S.-Mexico border. Carlos Holguin was working as an immigration lawyer in Los Angeles. And one day, he got a call from a Hollywood actor about the actor's Salvadoran housekeeper. She was in the U.S. illegally and needed help. Her daughter had been caught trying to enter the U.S. to join her.
CARLOS HOLGUIN: Her daughter was in INS custody. Her husband had been killed in El Salvador, and she was unwilling to go in essentially to surrender herself for pretty much certain deportation to El Salvador. So she was despondent because she couldn't get her daughter released.
KELLY: And the daughter was Jenny Flores.
HOLGUIN: Yes. We went to see her at a sort of makeshift detention center that the INS had set up in Pasadena. The facility was a 1950s-style hotel shaped like a U with the open part going towards the street. And the INS essentially put a chain-link fence in front of it with a sally port and then concertina wire on top of it and then all around the perimeter of the hotel. And it was two stories with, you know, sort of a balcony that goes around the second story, a pool in the middle. And so they drained the pool and started placing men, women and children of both sexes in rooms. There was regular daily contact with unrelated adults of both sexes.
KELLY: And how many in a room? Do you know?
HOLGUIN: It was usually about four. So the kids would essentially just hang around by the drained pool or on the balconies for days until - or weeks or months until it was determined what to do with them.
KELLY: There was no school. There was no special accommodation for children.
HOLGUIN: No, nothing at all, nothing for them to do and no accommodation for them. It was essentially the Wild West. There was - there were no standards whatsoever that the INS adhered to or that they were required to adhere to with respect to detention of minors.
KELLY: Now, Jenny Flores did have a cousin who was in the U.S. legally, but INS refused to release Flores to anyone who wasn't a legal guardian. That rule existed, INS said, because they were worried about the welfare of the children. To Carlos Holguin, that argument did not hold water, and so he sued the government over it.
HOLGUIN: When we began to look at the conditions that existed in the facilities in which the INS was placing these children, those conditions were completely inconsistent with any true concern for child welfare or their well-being. So the lawsuit basically argued two things. One is that the INS should screen other available adults and release children to them if they appeared to be competent and, you know, not molesters and things of that nature, and that - secondly, that the government needed to improve the conditions existing in facilities in which it held minors to meet minimum child welfare standards.
KELLY: The Flores lawsuit went all the way to the Supreme Court. Eventually, in 1997, the two sides signed a settlement that has governed treatment of migrant children in detention ever since. The Flores settlement has been revisited multiple times, most recently in 2015 when the Obama administration sought to carve out an exception for minors who had arrived in the U.S. with their parents. It came amid a surge in migrant families from Central America, and the administration wanted to detain some of them for as long as it took to process their cases. A federal judge in California said no, which brings us to yesterday when the Trump administration submitted a very similar request. And the same federal judge, Dolly Gee, is set to hear the case 33 years after Carlos Holguin first brought suit on behalf of Jenny Flores.
Did you ever expect when you started on all this, down this path in the 1980s, that sitting here in 2018 you would still be litigating the Flores case?
HOLGUIN: (Laughter) I had no idea, no. This is - this has been something that has come as a complete surprise. There is a clause in the original Flores settlement that would have sunset-ended the agreement after five years, but it required the government to implement the terms of the settlement as a federal regulation. The government never did that. And they've still never done that. So the government has had the ability for many, many years to extricate themselves from the requirements of the Flores settlement, but they've never had the wherewithal to simply promulgate the rules that are necessary for it to do so.
KELLY: Is there anything stopping the Department of Homeland Security or Health and Human Services from swooping in today and doing just that?
HOLGUIN: No. I think the only thing that perhaps concerns them is that the regulations would have to be consistent with the Flores settlement and that that seems to dissuade them from actually complying with their agreement and making the rules that the settlement requires.
KELLY: Because if they weren't consistent, then it would end up back in court and...
HOLGUIN: Correct. It'd be another violation of the settlement.
KELLY: What is the role of Congress here? Could Congress pass a law that would supersede the Flores settlement and settle this once and for all?
HOLGUIN: Oh, yes, unquestionably it could. In 2008, it passed the Trafficking Victims Protection Act which included a savings clause that kept the Flores settlement in force. So Congress' last word on this was that the Flores settlement should continue. You know, it could obviously say that, no, we're replacing it with this other comprehensive set of legislation if it wanted to.
KELLY: Last thing - I'm just curious. How ugly might we expect these coming days and next few weeks to get as the Trump administration tries to reconcile this zero tolerance policy which seems directly at odds with what is required for treatment of children under the Flores settlement?
HOLGUIN: What it really does is it foists upon these families an extremely difficult choice. If they want their children to have the rights that the Flores settlement gives them and the government is unwilling to release the parent, it's either a choice between Flores rights and separation, family separation.
To foist upon a parent the choice between separating from my child or having my child treated in accordance with the Flores settlement seems to me to be extremely cruel. And so my guess is that that's where we'll see the Trump administration placing these families, forcing them into making that kind of choice. That sort of choice is not something that the Flores settlement itself addresses or prevents the government from forcing upon families.
KELLY: Carlos Holguin, thank you.
HOLGUIN: My pleasure.
KELLY: Carlos Holguin - he's general counsel at the Center for Human Rights & Constitutional Law. And he is still counsel for Flores et al. in the case now known as Flores v. Sessions. Transcript provided by NPR, Copyright NPR.