Original Date AnnouncedAugust 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 DHS Secretary McAleenan and HHS Secretary Azar.
[ID #431]Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children
Effective DateOctober 22, 2019
Subsequent Trump-Era and Court Action(s)
September 27, 2019
Court Order Enjoining Flores
The Flores regulation was permanently enjoined on September 27, 2019 by a district court opinion mandating that "Defendants shall continue to comply with the Flores Settlement Agreement until they publish final regulations in compliance with the Agreement." The government appealed.View Document
December 29, 2020
Flores v. Rosen, No. 19-56326 (9th Cir. 2020)
The Ninth Circuit Court of Appeals reviewed the district court decision enjoining the termination of the Flores Settlement Agreement ("Settlement").
For 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 on DHS custodial care of unaccompanied minors and transfer to HHS were consistent with the Settlement, and rejected the government's various arguments for 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.**View Document
Current StatusNot in effect
Original Trump Policy StatusTrump Administration Action: Rule
Associated or Derivative Policies
Pre Trump-Era Policies
January 17, 1997
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
Trump-Era Policy Documents
- New Policy
Flores Settlement Agreement
District court ruling on Flores regulation
Flores v. Rosen, No. 19-56326 (9th Cir. Dec. 29, 2020)
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.Go to article on washingtonpost.com
2021.12.11 CBS News: Biden administration discards Trump-era plan to end legal agreement protecting migrant children
Reported: On December 11, 2021, CBS News reported that the Biden administration is "reversing course" on plans to implement the Trump-era rule identified in this entry, which would have terminated the Flores settlement: "[I]t is expected that the Biden administration will now work on its own rules to codify the Flores settlement, which was always intended to be replaced by regulations."Go to article