Flores Case
             
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Center for Human Rights and Constitutional Law


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      Flores v. Sessions

Background

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."

On April 16, 2018, the Center for Human Rights & Constitutional Law, the National Center for Youth Law, and the Immigration Clinic of the University of California at Davis sued the Office of Refugee Resettlement, alleging that the following policies and practices violate the Flores settlement:
  1. ORR's policy and practice to "step up" detained youth from shelters to staff-secure, secure and residential treatment centers without providing youth meaningful notice and an opportunity to be heard regarding the agency's justification for step-up.
  2. ORR's policy and practice to administer powerful psychotropic medications to detained youth regardless of their wishes and without securing their parents' consent.
  3. ORR's policy and practice to deny or delay detained children's release on the grounds their parents or other available custodians are or may harm or neglect them without providing meaningful notice and an opportunity to be heard regarding a potential custodian's actual propensity to harm or neglect.
Plaintiffs' briefing and publicly available evidence are available via the links under "Current Practice Documents" below.

On July 30, 2018, the District Court held ORR in breach of the Flores settlement and ordered as follows:

1) ORR must "transfer all Class Members out of Shiloh RTC unless a licensed psychologist or psychiatrist has determined or determines that a particular Class Member poses a risk of harm to self or others. Class Members who do not fall within that exception shall be placed 'in the least restrictive setting appropriate to [each Class Member’s] age and special needs' . . . ."

2) ORR must "(a) cease employing at Shiloh RTC any security measures that are not necessary for the protection of minors or others, including the denial of access to drinking water; and (b) permit Class Members at Shiloh RTC to 'talk privately on the phone, as permitted by the house rules and regulations."

3) ORR must "provid[e] each Class Member with a written notice of reasons for placing the minor in a secure facility, staff-secure facility, or an RTC within a reasonable time either before or after ORR’s placement decision. Any such notice shall be in a language that the Class Member understands."

4) ORR must "remove from a secure facility any Class Member who was placed or whose placement has been maintained there solely because: the Class Member 'may be chargeable' (as opposed to 'is chargeable') with an offense; the Class Member reported gang involvement or displayed gang affiliation while in care and Defendants lack probable cause to believe that the individual committed any other specified offense; and/or the Class Member self-disclosed gang involvement prior to placement in ORR custody that does not
give rise to probable cause to believe that the individual has committed a specified offense. All such Class Members shall be placed 'in the least restrictive setting appropriate to [each Class Member’s] age and special needs . . . .'"

5) ORR must "comply with all Texas child welfare laws and regulations governing the administration of psychotropic medications to Class Members at Shiloh." ORR must do the following before administering any psychotropic medication to Class Members at Shiloh RTC: "(1) provide the disclosure required by 26 Texas Administrative Code section 748.2253 to a 'person legally authorized to give medical consent' . . . , and (2) obtain the informed written consent of that person . . . ." If ORR is "not able to obtain such informed written consent, then they may not administer the psychotropic medication to the Class Member unless they obtain a court order authorizing them to do so under Texas law . . ." The court indicated during oral argument that ORR should consider its order regarding class members at Shiloh RTC a "bellwether" for what ORR must do before administering psychotropic drugs to children detained at other facilities as well.

6) ORR must "cease requiring ORR Director or designee approval prior to release of Class Members who: (1) were previously placed in secure or staff-secure facilities but have since been transferred to less restrictive settings; (2) prevailed on their Flores bond hearings; and/or (3) were placed in secure or staff-secure facilities based on incomplete, inaccurate, or erroneous information . . ."

7) ORR must "cease its blanket policy of requiring that post-release services are in place prior to the release of a Class Member to a sponsor for whom home study services were conducted. Such detention shall be permitted if ORR conducts an individualized assessment and determines that, given the particularized needs of the Class Member, the sponsor would not be a suitable custodian if such post-release services were not in place prior to release."

The court's order is available via the link below.

On June 29, 2018, five detained Flores class members filed a new class action, Lucas R. v. Azar, challenging these same three ORR policies, but alleging that the policies violate the Trafficking Victims Protection Act and the Due Process Clause of the Fifth Amendment to the U.S. Constitution, in addition to the Flores settlement. The plaintiffs also allege that ORR unlawfully blocks lawyers funded through the Vera Institute of Justice from representing detained children with respect to their placement, medication, and release to parents and other available custodians. The complaint in Lucas R. is available via the link below.

 
Key Orders and Opinions


Flores v. Meese, 681 F. Supp. 665 (C.D. Cal. 1988)

Flores v. Meese, 934 F.2d 991 (9th Cir. 1990)

Flores v. Meese, 942 F.2d 1352 (9th Cir. 1992) (en banc)

Reno v. Flores, 507 U.S. 292 (1993)

Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016)

Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017)

Order re: Settlement applicable to juveniles in family detention

Order re: Remedy for juveniles in family detention

Order re: ORR obligation to afford juveniles bond hearing

Order re: Duty to release juveniles in expedited removal, etc.

Order re: Motion to Enforce, July 30, 2018

Current Practice Documents

NB: You may wish to check back here periodically for additional documents and information.
 
Flores Settlement

Flores class counsel letter to OIL re: ORR implementation of bond hearings, July 24, 2017
ORR Interim Guidance re: Implementation of Bond Hearing Order, July 20, 2017
Memorandum from Chief Immigration Judge re: Implementation of Bond Hearings, July 21, 2017

CHRCL, Amicus Brief to Immigration Court re: Jurisdiction to Redetermine Custody of Minor in ORR custody, August 4, 2017

Order of Immigration Judge re: applicability of Flores Settlement to accompanied minor in family detention center, September 9, 2014.

Plaintiffs' counsel's practice advisory re: ORR and EOIR implementation of bond hearing order, September 6, 2017.

ORR UAC Manual of Procedures, § 1, August 7, 2017
ORR Request for a Flores Bond Hearing, January 3, 2018)(English)

ORR Request for a Flores Bond Hearing, January 3, 2018)(Spanish)
ORR email re: Policy Monday, January 8, 2018
ORR email re: Training on Notice of Placement in Restrictive Setting, January 29, 2018
DHS email, August 28, 2017, re: family custody reviews under Flores court order
ORR form Notice of Placement in a Restrictive Setting, February 5, 2018
FAQ ORR Directors Release Decision, January 26, 2018
ORR FAQ Bond Hearings, August 4, 2017

Plaintiffs' Memorandum of Points & Authorities in Support of Motion to Enforce Settlement Against Office of Refugee Resettlement, April 16, 2018
Proposed Order Enforcing Settlement, April 25, 2018
Exhibits in Support of Motion to Enforce Settlement, April 16, 2018, Vol. I

Exhibits in Support of Motion to Enforce Settlement, April 16, 2018, Vol. II
Exhibits in Support of Motion to Enforce Settlement, April 16, 2018, Vol. III
Exhibits in Support of Motion to Enforce Settlement, April 16, 2018, Vol. IV
Exhibits in Support of Motion to Enforce Settlement, April 16, 2018, Vol. V
ORR Opposition to Motion to Enforce Settlement, May 25, 2018
Declaration of Jallyn Sualog filed in opposition to motion to enforce settlement
Plaintiffs' Reply to Opposition to Motion to Enforce Settlement, June 15, 2018

Complaint [class action],
Lucas R., et al. v. Azar, et al. No. 2:18-cv-05741-DMG (C.D. Cal.)



Center for Human Rights and Constitutional Law Websites:
CENTERFORHUMANRIGHTS.ORG - CASA-LIBRE.ORG - CENTERFORHUMANRIGHTS.ORG/PRISONERS - CENTERFORHUMANRIGHTS.ORG/DOMA-
VOCESUNIDAS.ORG - NATIONALIMMIGRATIONREFORM.ORG - IMMIGRANTCHILDREN.ORG