Center for Human Rights and Constitutional Law
In 1997, the Center for Human Rights & Constitutional Law, National Center for Youth Law, Latham and Watkins, and National Center for Youth Law settled Flores v. Reno, a class action lawsuit filed in 1985 on behalf of unaccompanied undocumented children. The lawsuit challenged the Immigration and Naturalization Service’s (“INS”) policies governing children’s release and the conditions children and youth experienced during immigration-related custody.
The Settlement posits three bedrock principles:
First, the federal government must minimize the detention of immigrant and refugee children as much as possible. This means the government must pro-actively seek out reputable adults to whom detained children may be released, and it must release juveniles to such adults so long as they are neither dangerous nor unusually likely to abscond.
Second, the Settlement requires the federal government to house the general population of detained minors in facilities that are licensed to care for dependent—as opposed to delinquent—minors.
Third, the Settlement requires the federal government to treat detained children at all times, including during the immediate aftermath of apprehension, with dignity, respect, and due regard for their vulnerabilities as children.
The Settlement was originally set to sunset in 2003, but the Government subsequently stipulated to continue the agreement in force until it published regulations implementing the Settlement by federal rule. The Government has never published such regulations, so the Flores Settlement continued to regulate the release and placement of children and youth detained on account of their immigration status to this day.
Pursuant to the 2002 Homeland Security Act, Pub. L. 107-296 (H.R. 5005) (HSA), Congress dissolved the INS and transferred most of its functions to the Department of Homeland Security (“DHS”). The HSA placed responsibility for care and custody of unaccompanied immigrant and refugee youth, however, with the Office of Refugee Resettlement (“ORR”). In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act , 110 Pub. L. 457, 122 Stat. 5044, elaborated ORR's responsibilities toward detained children, requiring that it seek to place minors in the least restrictive setting consistent with their safety and the safety of the public. Both the HSA and TVPRA contain "savings clauses" preserving children's rights under the Flores Settlement.
Nonetheless, in the late summer and fall of 2014, the federal government adopted a policy and practice of detaining family units without possibility of release in order to deter others from seeking to enter the United States without authorization. The government detained these families, including children, in "family detention centers" in Texas and Pennsylvania, which lacked licenses to care for dependent minors.
On July 24, 2015, the United States District Court for the Central District of California ruled that "accompanied" children and youth, including those in the family detention centers, are covered by the Flores Settlement. On July 6, 2016, the Ninth Circuit Court of Appeals affirmed.
On January 20, 2017, the District Court held that the Settlement protects the right of unaccompanied children in ORR custody to a bond or custody hearing before an immigration judge. On July 5, 2017, the Ninth Circuit affirmed.
On June 27, 2017, the District Court held that the Settlement obliges ICE to minimize the detention of all minors, including those placed in expedited removal proceedings and those deemed "arriving aliens."