Child Migrants at the Border: The Flores Settlement Agreement and Other Legal Developments
April 1, 2021
Child Migrants at the Border: The Flores Settlement Agreement
and Other Legal Developments
Reports of child migrants arriving at the southern border
foster care services for dependent children.” See id. ¶ 14; id.
have raised interest in the laws governing their custody and
at Ex. 2(h). Minors may be placed in secure juvenile
treatment by U.S. authorities. The Immigration and
facilities in limited cases, such as when charged with a
Nationality Act (INA) generally authorizes the detention of
crime. See id. at Ex. 2(i). This detention period of three to
non-U.S. nationals (“aliens” under governing law) placed in
five days may be relaxed in the event of an emergency or an
removal proceedings while their removability and any
influx of minors into the United States, as long as
claims for asylum or other relief are considered. See
immigration authorities place all minors in a nonsecure,
Jennings v. Rodriguez, 138 S. Ct. 830, 838 (2018). But a
licensed facility “as expeditiously as possible.” See id. at
more specific body of law—comprised of federal statutes, a
Ex. 2(h). An alien minor not released from detention is
1997 settlement agreement, and regulations partially
entitled to a bond hearing before an immigration judge. See
implementing that agreement—governs the care and
id. ¶ 24A.
custody of alien minors. This framework distinguishes
arriving minors who are unaccompanied by immediate
Implications for UAC Arrivals
family—commonly known as unaccompanied alien
The treatment and processing of UACs is largely controlled
children (UACs)—from those arriving with a family unit.
by the interplay of the Flores Agreement, federal laws
enacted following the entry of the consent decree, and
The Flores Settlement Agreement
federal regulations issued in 2019.
In 1985, a class action lawsuit filed in the U.S. District
Court for the Central District of California challenged
The Homeland Security Act and the Trafficking
procedures for the detention and release of alien minors by
Victims Protection Reauthorization Act
immigration authorities. After more than a decade of
Two federal laws establish the main framework for the
litigation, the parties negotiated a settlement agreement
treatment of UACs. The Homeland Security Act of 2002,
commonly known as the Flores Settlement Agreement. See
Pub. L. No. 107-296, defines an unaccompanied alien child
Stipulated Settlement Agreement, Flores v. Reno, No. 85-
as one who (1) lacks lawful immigration status in the
CV-4544 (C.D. Cal. 1997). The Agreement was entered as
United States; (2) is under 18 years old; and (3) is either
a consent decree in 1997, and the district court continues to
without a parent or legal guardian in the country or without
monitor compliance with its terms. Under a 2001
a parent or legal guardian in the country who is available to
stipulation, the Agreement is binding until the government
provide care and physical custody. See 6 U.S.C. §
promulgates final implementing regulations. See Stipulation
279(g)(2). The Act also transferred most immigration
Extending Settlement Agreement, Flores v. Reno, No. 85-
functions from the former Immigration and Naturalization
CV-4544 (C.D. Cal. 2001).
Service (INS) to the Department of Homeland Security
(DHS). Functions related to the care of UACs, though, were
The Agreement sets forth a “nationwide policy for the
transferred from INS to the Office of Refugee Resettlement
detention, release, and treatment of minors” in immigration
(ORR) of the Department of Health and Human Services
custody—applying to UACs and accompanied minors alike.
(HHS). Id. § 279(a)-(b).
See Agreement ¶ 9; Flores v. Lynch (Flores I), 828 F.3d
898, 908 (9th Cir. 2016). It also announces a general policy
Congress enacted legislation to address the treatment of
favoring release of apprehended minors and requiring the
UACs comprehensively with the Trafficking Victims
government to place them in “the least restrictive setting
Protection Reauthorization Act of 2008 (TVPRA), Pub. L.
appropriate to the minor’s age and special needs, provided
No. 110-457. The TVPRA generally requires that a child in
that such setting is consistent with its interests” in
government custody be transferred to ORR within 72 hours
protecting the minor’s well-being and ensuring his or her
after determining that the minor is a UAC. 8 U.S.C. §
presence at removal proceedings. Agreement ¶ 11. Minors
1232(b)(3). ORR must promptly place the minor “in the
are to be detained in “safe and sanitary” facilities and
least restrictive setting that is in the best interest of the
cannot be housed with an unrelated adult for more than 24
child.” Id. § 1232(c)(2)(A). A UAC “shall not be placed in
hours. Id. ¶ 12.
a secure facility absent a determination that the child poses
a danger to self or others or has been charged with having
Within three to five days of a minor’s apprehension and
committed a criminal offense.” Id. Besides establishing a
detention, the government generally must either (1) release
framework for the detention, treatment, and release of
the minor to a parent, legal guardian, adult relative, or other
UACs, the TVPRA sets forth special rules for their
“capable and willing” designated adult or entity; or (2)
removal. While most aliens encountered at the border
place the minor in a nonsecure facility “licensed by an
without valid entry documents undergo a streamlined
appropriate State agency to provide residential, group, or
expedited removal process, UACs are placed in standard
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Child Migrants at the Border: The Flores Settlement Agreement and Other Legal Developments
removal proceedings that offer greater procedural
Agreement, and those portions of the 2019 regulations
protections. See 8 U.S.C. § 1232(a)(5)(D). UACs from
largely consistent with the Agreement.
Canada or Mexico may also be given the option to return
voluntarily to their home country rather than being placed
Implications for Accompanied Minors
in removal proceedings. Id. § 1232(a)(2). Furthermore,
and Their Family Units
UACs are subject to special asylum processing rules. Id. §§
While federal statutes and regulations address the treatment
1158(a)(2)(E), (b)(3)(C).
of UACs, the Flores Agreement is the main source
governing accompanied minors (i.e., those who came with a
Federal Regulations
family unit). Of note, some provisions in the 2019 DHS
DHS and HHS issued a joint final rule in 2019 to
regulations relating to the initial apprehension and
implement the Flores Agreement “in a manner that is
processing of minors—accompanied or otherwise—overlap
workable in light of subsequent statutory, factual, and
with the Flores Agreement. See Flores III, 984 F.3d at 737.
operational changes.” See 84 Fed. Reg. 44,392 (2019). The
HHS component of the regulations—which generally tracks
Rules for the custody and care of accompanied minors may
the Flores Agreement—addresses the care and custody of
also implicate their family units. The Flores Agreement
UACs. The DHS component—which diverges more
does not establish any affirmative release rights for the
substantially from the Agreement—addresses the
parents of the minor. See Flores I, 828 F.3d at 908–09. But
apprehension and processing of all minors, including the
it requires the placement of minors in nonsecure, state-
care and custody of accompanied minors not covered by
licensed facilities within days of apprehension, potentially
HHS regulations. See 8 C.F.R. §§ 212.5, 236.3.
leading to those minors’ separation from family units that
remain housed by immigration authorities. In certain
The U.S. Court of Appeals for the Ninth Circuit recently
extenuating circumstances, an extension of the transfer
reviewed a challenge to aspects of the new regulations. As
period for up to 20 days may be permissible. See Order Re
for the HHS regulations, the court ruled that they could
Response to Order to Show Cause, Flores v. Lynch, No. 85-
largely take effect, but for two exceptions. See Flores v.
CV-04544 (C.D. Cal. 2015).
Rosen (Flores III), 984 F.3d 720, 736 (9th Cir. 2020). First,
the court ruled that a “catch all” provision in the HHS
Although DHS maintains some family detention facilities, it
regulations, allowing the placement of a minor in a secure
is unclear how many (1) are nonsecure, state-licensed
facility upon an agency determination that the minor is
facilities as required by the Flores Agreement; and also (2)
“otherwise a danger to self or others,” impermissibly
permit the housing of adults. With the Agreement in place,
deviated from the Flores Agreement. See id. at 732–33; 8
the executive branch has, in effect, three options for the
C.F.R. §§ 410.203(a)(5). Second, the court struck down an
detention of families pending the outcome of removal
HHS regulation providing that a minor can “opt-in” to
proceedings: (1) release family units as a group; (2) detain
receive a bond redetermination hearing concerning a
family units in a family detention center, provided those
custody placement decision, as opposed to the Flores
facilities comply with the Flores Agreement; or (3) detain
Agreement’s “opt-out” right to a hearing. Flores III, 984
the parents and release the children only.
F.3d at 735. The court did conclude, however, that a
hearing before an HHS adjudicator, rather than before an
Congressional Considerations
immigration judge as provided by the Agreement, was not a
The Flores Agreement terminates upon the promulgation of
material departure because the minor retains a right to
final regulations consistent with its terms. But options exist
independent adjudicatory review of a custody decision. Id.
to change the Agreement’s effect. For example, the
at 734–35.
executive branch could reach an agreement with the
plaintiffs to modify the Agreement’s terms. Or, the
As for the DHS regulations, the Ninth Circuit upheld
government could file a motion before the court overseeing
aspects concerning the initial care and processing of UACs
the consent decree to modify the Agreement if changed
and accompanied minors. But it found two components—
circumstances so warrant. See Fed. R. Civ. P. 60(b). To
generally relevant to accompanied minors rather than
date, however, such requests by the government have been
UACs—impermissibly differ substantially from the
denied. See, e.g., Flores III, 984 F.3d at 741–44.
Agreement in that they (1) limit the circumstances in which
accompanied minors may be released; and (2) provide for
Congress may consider legislation to codify, alter, or end
the detention of families in facilities licensed by federal
the application of the Flores Agreement. If legislation
authorities—not state-licensed facilities as mandated in the
conflicts with the Agreement, it may warrant a modification
Agreement. Flores III, 984 F.3d at 737–40.
of the consent decree by the presiding court. See Flores v.
Sessions, 862 F.3d 863, 874 (9th Cir. 2017). More broadly,
Further, the court held that the district court did not abuse
Congress may consider legislation to address the treatment
its discretion in denying the government’s motion to
of child migrants comprehensively, including on matters
terminate the Flores Agreement in full, leaving it still in
not governed by the Flores Agreement. In recent
effect. Id. at 737, 744. But the government may still move
Congresses, legislation has been introduced to modify the
to terminate those portions of the Agreement covered by the
TVPRA provisions governing the custody and removal of
regulations not struck down by the court. Id. at 737 n.12.
UACs specifically.
In sum, the apprehension, processing, custody, and care of
Kelsey Y. Santamaria, Legislative Attorney
UACs is generally controlled by the TVPRA, the Flores
IF11799
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Child Migrants at the Border: The Flores Settlement Agreement and Other Legal Developments
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