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Years before tens of thousands of children arrived at the border, a 15-year-old girl from El Salvador showed up at a California port of entry and set in motion a legal case that controls the treatment of immigrant juveniles in federal custody today.
Jenny Lisette Flores had fled her country's civil war and was arrested in 1985 near San Ysidro, California.
She arrived about a year after the Immigration and Naturalization Service’s western regional commissioner Harold Ezell, appointed by then-President Ronald Reagan, toughened rules for releasing minors, so they were released only to a parent or legal guardian, keeping some detained for lengthy periods.
As a result, Jenny spent two months at a Pasadena, California, detention facility that put her in the company of adults she didn’t know and subjected her to regular strip searches.
Jenny wasn't the only child being held. The housekeeper of actor Ed Asner, most popularly known for playing Lou Grant on the The Mary Tyler Moore Show, had a 12-year-old daughter whom INS would not release, said Carlos Holguín, general counsel for the Center for Human Rights and Constitutional Law. The center sued with Jenny as one of four named plaintiffs in what late became the Flores v. Reno case.
“The basic thing we were trying to accomplish was first to do away with indefinite detention (of children) or the children being used as bait to arrest the parents,” said Holguín, who was part of the litigation team from the beginning. “Second was to improve the conditions where they were being held.”
INS at the time had a 1950s-style hotel that was horseshoe-shaped around a pool, Holguín said. INS, which preceded in the Department of Homeland Security, drained the pool and strung concertina wire around the hotel. Men, women and children were housed at the facility, Holguín said.
The children had no education opportunities, no recreation, could not have visits with family and friends and mixed with unrelated adults. “And all this was being done to protect them,” Holguín said.
The immigrant children who were being held for months at a time had no education opportunities, no recreation, could not have visits with family and friends and mixed with unrelated adults. “And all this was being done to protect them,” said one of the attorneys.
Jenny’s mother, who was in the U.S., refused to go her daughter for fear she’d be deported back to El Salvador, then in the throes of a brutal civil war, according to the original complaint.
Attorneys alleged children were not released until parents underwent INS interrogations, thus being used to draw out their parents illegally here. The government adamantly denied the charge.
The class action suit filed on Jenny’s behalf also named other young people including Ana Maria Martinez Portillo, 16, of El Salvador, arrested in Laredo, Texas, where she was subjected to strip and vaginal searches at a Corrections Corporation of America-run facility, according to the original complaint.
Holguín and other attorneysin the original case reached by NBC didn’t know the whereabouts of Jenny or the other defendants or what ultimately became of them once the case was settled.
About 10 days after the 1985 complaint was filed, a judge issued an injunction ordering Jenny and another Salvadoran teenager released, deciding it was healthier for them than to remain in custody, according to a July 1985 report by The Associated Press.
The judge said that the court was not “rescuing the children from an intolerable situation, but rather is providing for a more wholesome environment and atmosphere,” the AP reported.
The class action lawsuit continued to wend its way through the courts with the argument over whether the INS release policy was constitutional, Holguín said.
The Supreme Court ruled the children had no constitutional right to be released to unrelated adults in a 6-3 opinion, but because detention standards remained substandard, a fight continued until the government agreed to a national settlement in 1997.
The settlement binds the Department of Homeland Security in its treatment of all young people in federal custody who arrive without a parent or guardian and encourages placing children in the "least restrictive setting."
It also sets up a hierarchy of adults to whom the children could be released and allowed those who had no responsible adult to stay in group homes and foster care, a procedure in place today as officials deal with the children seeking refuge here.
They must be released to a parent, legal guardian, adult relative or an individual specifically designated by the parent, a licensed program or an adult who is seeking custody and whom DHS deems is appropriate The settlement limits time children can spend in custody with an unrelated adult.
Compliance with the settlement was spotty after it was hammered out and approved by a court until Congress passed anti-trafficking laws that put parts of the settlement into law and created other protections for children.
Even as Congress looks to rewrite the 2008 Trafficking Victims Protections Reauthorization Act of 2008 so it can remove from the country Central American children who have sought refuge here, parts of the Flores settlement must still be followed. A change in the 2008 law allowed officials to send Mexican children back to their country who agreed to removal rather than detention, but Central American children are given a chance to make asylum claims and be reunited with family.
When Congress allowed Central American children to remain while awaiting deportation hearings, it bet that the numbers coming from countries other than Mexico would be negligible, Holguín said.
“Even today, the vast majority of these youth are not criminal youth. They are children trying to get away from delinquency, trying to come up here and save themselves and their families.”
"The reason the (2008 law) has worked until relatively recently is now, all of a sudden, the demographics have changed,” Holguín said. Holguín said by returning Central American children too, Congress would be rationing due process, as it did with Mexican children. But he acknowledged the situation is complicated.
“My visceral reaction is rationing due process is not a good thing. But I have to admit the government is pressed and I think that with some exceptions and some caveats, the administration is tyring to do its best with a very, very difficult situation.”
When reached by NBC, Holguín said he was preparing to head to some of the newly opened facilities that are now housing the most recent arrived children to check compliance.
The Obama administration has asked Congress for about $3.7 billion to deal with the crisis, from paying costs of sheltering the children to paying for deportation proceedings and detention costs. In the end, keeping children in group homes or similar settings is far cheaper than the paying for security of a detention center and more humane, he said.
“Even today, the vast majority of these youth are not criminal youth,” Holguín said. “They are children trying to get away from delinquency, trying to come up here and save themselves and their families.”