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Final Rule terminating Flores Agreement regarding detention of migrant children

  1. Date Announced

    Aug. 23, 2019

    DHS rule terminates and replaces the Flores Settlement Agreement, which governed the apprehension, processing, care, custody, and release of noncitizen juveniles. The rule distinguishes between accompanied and unaccompanied migrant children and provides less protection for accompanied children, to whom the maximum time allowed in detention for children does not apply. This rule was signed by Acting Secretary McAleenan and Secretary Azar.

    [ID #431]

    View Policy Document
  2. Effective Date of Change

    Oct. 22, 2019
  3. Subsequent Action

    September 27, 2019

    Flores regulation permanently enjoined on September 27, 2019. The opinion mandates that "Defendants shall continue to comply with the Flores Settlement Agreement until they publish final regulations in compliance with the Agreement." The government appealed.

    Court Order Enjoining Flores
  4. Subsequent Action

    December 29, 2020

    The Ninth Circuit Court of Appeals reviewed the decision of the district court enjoining the termination of the Flores Settlement Agreement ("Settlement").

    With respect to HHS regulations, the Court held that the new regulations could take effect, with two exceptions. First, the new regulation entitling ORR to place an unaccompanied minor in a secure facility (e.g., a state or county juvenile detention facility) "whenever" it determines that the minor is "a danger to self or others" is inconsistent with the Settlement. A minor cannot be detained in a secure facility "absent a determination that the child poses a danger to self or others." Second, the new regulation providing that an unaccompanied minor is entitled to a bond hearing "only if they request one" is inconsistent, because the Settlement provides that a bond hearing will be held "unless . . . he or she refuses such a hearing."

    On "[i]nitial apprehension and processing of both unaccompanied and accompanied minors," the new regulations are inconsistent with the Settlement in two respects: "(1) they limit the circumstances in which accompanied minors may be released, and (2) they provide for the detention of families together in facilities licensed not by states but by ICE itself." The Court held that provisions regarding DHS custodial care of unaccompanied minors and transfer to HHS were consistent with the Settlement.

    The Court rejected the government's various arguments for the wholesale termination of the Flores Settlement.

    **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

    Flores v. Rosen, No. 19-56326 (9th Cir. 2020)
Type of Action: Rule
Subject Matter: Minors Detention
Agencies Affected: CBP ICE USCIS ORR

Prior Policies

  • The Flores settlement required that children be placed with a close relative or family friend “without unnecessary delay;” and that migrant children in custody must be held in the “least restrictive conditions” possible. The Ninth Circuit held this applied to both accompanied and unaccompanied children, https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/06/15-56434.pdf.

    Flores Settlement Agreement

Subsequent Actions

Commentary

Trump administration moves to terminate court agreement, hold migrant children and parents longer

The Trump administration is moving to terminate a federal court settlement restricting how long U.S. officials can detain migrant children with their parents and replace it with a rule that could expand family detention and dramatically increase the time children spend in custody. The Department of Homeland Security and the Department of Health and Human Services will issue a rule Friday to withdraw from the Flores Settlement Agreement, the federal consent decree that has set basic standards for the detention of migrant children and teenagers by the United States since 1997. The new rule will need the approval of a federal judge, who declined the government’s request last year to expand detentions. Homeland Security officials said the rule would eliminate a 20-day cap for detaining migrant children and create a new license regime that would make it easier for federal officials to expand family detention nationwide.

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