McALLEN, Texas (Border Report) — The U.S. Office of Refugee Resettlement, which oversees the care of unaccompanied migrant youth, on Tuesday told Border Report that the agency is adhering to the Flores Settlement Agreement with regards to limiting the detention of unaccompanied migrant minors, but said that a 20-day detention limit is not “a bright-line rule” and not one they are required to follow.

The 1997 Flores Settlement Agreement sets limits on the length of time and conditions under which children can be incarcerated in immigration detention.

“The terms of the Flores Settlement Agreement (FSA) apply to the Office of Refugee Resettlement (ORR) at HHS’ Administration for Children and Families. ORR has implemented the applicable terms of the FSA through ORR’s policies and procedures. All HHS/ORR care provider facilities provide FSA mandated services,” Pat Fisher, a public affairs and media specialist for the Department of Health and Human Service’s Administration for Children and Families wrote in an email to Border Report on Tuesday morning.

Amnesty International USA Executive Director Margaret Huang toured South Texas last week with a delegation of directors from six countries to investigate human rights abuses. (Border Report Photo/Sandra Sanchez).

Fisher was responding to an exclusive Border Report story on Thursday in which Margaret Huang, the executive director of Amnesty International USA, said that during a recent tour of an ORR facility for youth in Brownsville, Texas, the head of ORR told her he believes his agency is exempt from the Flores Agreement.

Huang told Border Report that during the nonprofit’s two-hour tour of an ORR facility for girls ages 10-17 on Thursday, ORR Director Jonathan Hayes told her he believes children held in ORR facilities can be held for longer than 20 days despite international policies and previous U.S. policies.

Read Border Report’s story on Amnesty International’s visit to an ORR facility here.

Huang said Hayes flew in from Washington, D.C., to accompany the global delegation of Amnesty International directors from six countries on the tour Thursday. Afterwards she expressed shock when she said Hayes told her he believes the federal government agency can hold children for longer than 20 days because it is not considered detention but “care and custody,” she said.

Jonathan Hayes is director of the U.S. Office of Refugee and Resettlement, which oversees the care of unaccompanied migrant youth. (Courtesy Photo).

Border Report on Thursday called and emailed ORR to request a response and confirmation of Hayes’ attendance in Brownsville. And while Tuesday’s lengthy response from ORR explained the agency’s policy toward children, it did not address whether Hayes traveled to South Texas or what he said.

“The FSA does not specify a 20-day rule by any of its terms. In 2015, pursuant to a motion to enforce the agreement, the court overseeing compliance of the FSA determined that accompanied children in DHS custody are also subject to the settlement’s terms. Accompanied children and their parents are detained in ICE custody in family residential centers, not HHS/ORR care providers. In that case, as well, the court did not establish a bright-line rule, but essentially ruled that 20 days might be acceptable under the FSA for children held in non-state licensed ICE family residential centers to be released, if that is how long it took DHS, acting in good faith and with due diligence, to make a credible fear determination.,” Fisher wrote.

The court did not establish a bright-line rule, but essentially ruled that 20 days might be acceptable under the FSA for children held.”

Pat Fisher, HHS spokesperson

The Flores Agreement dates back to 1984 and has been amended and appealed on numerous occasions.

“As you will find the 2015 order does not apply to HHS/ORR care providers housing unaccompanied alien children,” Fisher wrote.

“Congress requires that each child must ‘be promptly placed in the least restrictive setting that is in the best interest of the child,’ subject to considerations of whether the child is a danger to self or others,” Fisher wrote. “Congress also specifically prohibits ORR from releasing children on their own recognizance.”

ORR says it has leeway as it evaluates each case independently. Staff make every effort to try to pair children immediately with family members in the United States upon their arrival, but the agency said sometimes that takes longer than 20 days and they are afforded leeway.

ORR operates 170 facilities or programs in 23 states. The average length of stay of a child in an ORR facility was 57 days in September, down from 93 days in November 2018.

Huang said Hayes told her there is a child who has been in ORR custody for seven and a half years. It is unknown what facility or where that child is living.

In Fiscal 2019, ORR cared for a total of 69,550 unaccompanied migrant youth, which was an increase of 42 percent from fiscal 2018. The agency said 73,301 unaccompanied minor migrants in total were released from ORR’s care in fiscal 2019.

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