AILSA CHANG, HOST:
Now, the litigation that led to the Flores agreement began all the way back in the 1980s. Here's a lawyer describing what conditions were like for Jenny Flores. She was the migrant girl the settlement was named after.
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CARLOS HOLGUIN: 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. There was regular daily contact with unrelated adults of both sexes. So the kids would essentially just hang around for days until - or weeks or months until it was determined what to do with them.
CHANG: That was Carlos Holguin. He's one of the original lawyers arguing on behalf of Jenny Flores. Now he's part of a legal team that will challenge the administration's new regulations in court. Another lawyer on that team is Holly Cooper. She's co-director of the University of California Davis Immigration Law Clinic. Welcome.
HOLLY COOPER: Well, thank you for having us.
CHANG: OK. We just heard about what the conditions were like back in the 1980s for migrant children in federal detention. Obviously the living conditions standards have changed drastically since then? Can you just explain how having Flores in place improved the situation?
COOPER: Well, the first thing that Flores did was it required that all facilities that detain children for over 20 days be licensed by the state in which they are placed. And one of the things that will be undermined by these new rules is it'll do away with the state licensing requirements and allow the federal government to sort of self-police and self-license these facilities.
But as we saw this summer with, you know, with Customs and Border Patrol conditions that there was a lack of basic hygiene, water, access to responsible adults. So, you know, putting this in the place of the federal government - the regulation of these facilities is not something that I think that they're, you know, able to do or have not demonstrated historically that they are.
CHANG: Well, you point out something there that I wanted to touch on, and that is, yes, we have been hearing about children not getting adequate care they need in these government facilities, about children getting placed in sometimes dangerous foster homes. So something clearly is not working, even with Flores in place now.
COOPER: Yeah. I think that what we've tried to do is go back to the court multiple times, even requesting sanctions against the government for its failure to repeatedly comply with the terms of the Flores settlement agreement. And many of those are still pending and in mediation.
So I think that, you know, we're on the cusp of perhaps coming to a resolution on those repeated failures. Here, in the face of all of that, we have these new regulations coming out saying that we're now going to be in charge without any sort of oversight by the Flores counsel.
CHANG: OK. Well, I want to get your sense - I want to get a sense of your legal plan of attack going forward now. Where do you think the administration is most vulnerable right now? Like, what's the one section in these new regulations you think you're going to be able to most easily knock down in court?
COOPER: Well, the provision that we are most concerned with is the provision that allows for the indefinite detention of children because, as you know, the biggest underpinning of the Flores settlement agreement was to provide that children should be released as quickly as possible from detention...
CHANG: Right.
COOPER: ...In recognition of sort of expert opinions that detention is, by and large, very traumatic and bad for children. And so now that we have this sort of open door to allow for indefinite detention of children, we feel like that is very inconsistent and flies in the face of the Flores settlement agreement.
CHANG: OK. That said, given - let's talk about the conditions that the administration says is going to be provided. They are guaranteeing campus-like settings. They're saying that educational and medical resources will be provided, mental health care, private living facilities for families. At least with respect to those aspects, isn't that exactly the kind of care that you've been fighting for all these years?
COOPER: Well, that's the kind of care that they're saying they're currently providing. And so I would push back on that and say that that's completely inconsistent with the children's own words, which we provided in multiple declarations before the court. And many times the government has even acquiesced to those children's statements and haven't contested their findings. So I would push back on that and say that that's not exactly accurate with what the record reflects.
CHANG: Now, the Trump administration has always said that Flores was only supposed to be temporary. What do you think is a more permanent solution?
COOPER: I mean, I think that what we need is some history of compliance. And we need regulations that mirror the spirit of the Flores settlement agreement because it's - sort of a history of compliance and sort of turning over the, you know, the policing and the oversight to a government that showed it's inept at caring for children. I think it's irresponsible for us, as you know, as lawyers or as a country.
And moreover, the federal government is on record as saying that they make bad parents. And I think we all agree that, yes, the best parents are, you know, children's actual parents and that freedom should be the default, not detention for children. And so we need to have that reflected in any final rule that is promulgated by the federal government.
CHANG: Holly Cooper is one of the lawyers who will be challenging the Trump administration's new regulations to replace the Flores settlement.
Thanks very much for joining us today.
COOPER: Yeah, thank you for having me. Transcript provided by NPR, Copyright NPR.